International Employment – latest Digital Employment issues Melanie Lane and Karine Audouze

Introduction

• Digital employment seminar – March 2013:

• Latest social media cases and legislative developments

• Home working and working time

• “Bring your own device”

• Jurisdictional issues arising from cross border working

• Agenda:

• Brief update: UK, Germany and Spain

• Facebook and BYOD in France – recent case law developments

• European data protection reform

Digital Employment – social media• No significant recent social media cases in the UK

• General themes therefore remain:

• Employers can generally rely on postings which reveal misconduct

• Having clear social media policy assists employers

• But usual unfair dismissal principles apply

• ETs not sympathetic to privacy/freedom of expression arguments if risk of damage to employer’s reputation

Digital Employment – social mediaRecent Facebook case law in France

• Until recently, Facebook viewed as public arena whatever the privacy settings

• So, as in the UK, French employers could rely on postings which reveal misconduct

• Freedom of speech as a union member was no defence

• New approach by the Civil Chamber of the French Court in April 2013: a FB profile is not public hence actions of an employee are in his/her private sphere

Digital Employment – social media• October 2013, Spanish Constitutional Court decision:

• Permissible to monitor company provided email and phones, even if no prior notification

• Employer justified in firing employee whose breach of confidentiality revealed by such monitoring

• Contrary to previous Supreme Court doctrine requiring prior notification of monitoring

Digital Employment - BYOD

• Increasingly popular in UK, Germany and Spain

• Cost savings v security and data protection issues

• UK: new ICO guidance; clear policy vital

• Germany: data privacy issues; monitoring personal devices almost impossible; need to involve works councils

• Spain: popular, but law and practice less developed

www.olswang.com6

Digital Employment - BYOD

• BYOD policies are not developed in France, unlike UK

• February 2013: French Supreme Court decision allowing employers to monitor personal USB sticks connected to office device

• Not permissible to monitor employees’ personal dictaphones

• No case law on monitoring of private phones

• Strong data protection laws in France may impair control by employer of personal devices

www.olswang.com7

EU data protection reform

• January 2012, EC published proposals for reform of EU data protection law

• Draft Regulation to replace existing Data Protection Directive

• Aim to harmonise data protection processes and enforcement across EU and address privacy online

• To be directly binding

• European Parliamentary Committee confirmed its stance last month

• EC/EP/Council will now negotiate

• Agreement at EU level by May 2014, with new Regulation coming into force from May 2016?

New EU rules: top changes

• Current principles amplified + new principles e.g. RTBF/erasure

• Anti-trust style fines – up to 2% of enterprise’s global turnover (or maybe 5%!)

• Data breach notification requirements

• More prescriptive tick box / documented / auditable compliance

• DPO requirement

• Direct obligations and liabilities for data processors

• Data controllers stronger obligations for processor selection

• National rules to govern processing in employment context