10.6092/issn.2421-2695/6009
Le modalità di svolgimento della prestazione lavorativa sono state oggetto negli ultimi anni di innumerevoli cambiamenti collegati all’ampia diffusione delle più moderne tecnologie dell’informazione e della comunicazione nel rapporto di lavoro. La privacy e il controllo del datore sono diventati temi di rilevante interesse, oggetto di controversie negli ultimi anni anche nell’ambito del dibattito portoghese.L’innovazione tecnologica, attraverso la video sorveglianza, il GPS, il sistema RFID, il controllo delle comunicazioni elettroniche, dei social network e dell’uso di Internet, rende possibile una sorveglianza continua del lavoratore e solleva nuove questioni giuridiche. Queste forme di controllo costituiscono potenti strumenti di sorveglianza e di memorizzazione, ma anche di analisi e di interferenza nella riservatezza delle persone. Di conseguenza, una delle maggiori sfide odierne è la regolazione del controllo a distanza del lavoratore perché lo sviluppo delle tecnologie moderne ha reso possibile la raccolta, la conservazione e l’accesso alle informazioni su una scala apparentemente senza limiti. Per consentire il ricorso agli strumenti di controllo tecnologici e digitali è importante stabilire dei limiti, sulla base dei principi del trattamento dei dati contenuti negli articoli, 20, 21, e 22 del Codice del lavoro Portoghese e nel Codice della protezioni dei dati personali, legge n. 67/98, e, più di tutti, sulla base dei principi di legittimità, proporzionalità e trasparenza.Il ricorso alle tecnologie informatiche e digitali ha portato a nuove forme di controllo molto più intrusive che controllano pressoché tutto, anche il modo in cui il lavoratore pensa.
application/pdf
2421-2695
6009
1
en
Teresa Coelho Moreira
Labour & Law Issues
The Electronic Control of the Employer in Portugal
Text.Serial.Journal
https://labourlaw.unibo.it/
2
Idee
2016-02-22
2016-02-22
2016-02-08
2016-12-23
I. 1-27
LLI
Teresa Coelho Moreira
2016/02/22
10.6092/issn.2421-2695/6009
I. 1
University of Minho
2421-2695
1
en
27
WALLACE P., The Internet in the workplace: How New Technology is Transforming Work, Cambridge University Press, Cambridge, 2004, p. 3.
The Electronic Control of the Employer in Portugal
https://labourlaw.unibo.it/article/download/6009/5792
2
The Electronic Control of the Employer in
              Portugal



        Teresa Coelho Moreira
         University of Minho




           vol. 2, no. 1, 2016
             ISSN: 2421-2695
    The Electronic Control of the Employer in
                    Portugal


                                                  TERESA COELHO MOREIRA
                                                              University of Minho
                                                        tmoreira@direito.uminho.pt




                                   ABSTRACT

       The way the work is made has been suffering in the last years countless
changes related with the huge increase and development of the use of new
information and communication technologies in the work relationship. The
theme of privacy and surveillance of the employer have been turning in a
matter of considerable interest and surrounded of great controversy in the last
years all around the world and Portugal is no exception.
       The technological innovation allows, through several instruments as the
use of video surveillance, GPS, RFID, control of electronic communications,
control of online social networks or the internet, the continuous surveillance
and monitoring of the workers and new questions arise in the horizon. These
new forms of control constitute powerful means of surveillance and of
memorization, but also of analysis and of interference in the people’ privacy,
and one of the major challenges put today is the regulation of this new forms
of control in the workplace because the advancement of modern technology
has made it possible to collect and store information on a seemingly limitless
scale, while also facilitating access to it. The question that arises before the use
          T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


of this technology is to know what limits should be established. And the
answer is related, it seems, with the principles of data protection, mainly, in
Portugal, articles 20, 21 and 22 of Portuguese Labour Code and also the
Portuguese Data Protection Act, Law number 67/98, from 26th October, and,
most of all, the legitimate principle, the proportionality principle and the
transparency principle.
       This as led to a new form of control much more intrusive and that
controls almost everything even the way the worker thinks.



Keywords: electronic control; video-surveillance;            GPS;     electronic
communications; data protection; workers




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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal



     The Electronic Control of the Employer in Portugal

SOMMARIO: 1. Introduction. - 2. The electronic control of the employer. - 3. Means of
     remote control – articles 20 and 21 of Portuguese Labour Code. - 4. Control of the
     electronic communications of the workers. - 5. Conclusions.



1. Introduction

        The use of new information and communication technologies has
made extensive employee monitoring and surveillance by employers
inexpensive and easy and nowadays it is clear widespread and more and more
organizations are monitoring their employees. Perhaps the most substantive
issue raised by monitoring and surveillance in the workplace relates to the
fundamental right to privacy for workers. As an EU report has put it,
“Workers do not abandon their right to privacy and data protection every
morning at the doors of the workplace” (1). In fact, privacy becomes even
more important given that the traditional clear boundaries between work and
personal time are increasingly becoming blurred through developments such
as teleworking, flexible hours contracts, adaptability of working time and many
other forms (2).
        On the other hand, people expect to have some privacy at work, even if
they are on their employer's premises. At the same time, it is normal that
working for someone will mean giving up some privacy. Employers have a
legitimate interest to control the activities of employees while on working time
and they need basic information about their employees for things like pay and
benefits, and they have to be able to ensure that work is being done efficiently
and safely (3). The question is that today the monitoring of employees and
their activities can be taken to a point where the employee suffers an



         (1) FRANK HENDRICKX, Protection of Workers Personal Data in the European Union,
EU, 2002.
         (2) In Portugal there are many possibilities of work time arrangements like the “bank
if hours” – articles 208, 208-A, and 208-B, along with telework – articles 165 to 171 as other
possibilities.
         (3) See DÄUBLER, Internet und Arbeitsrecht, third edition, Bund-Verlag, Frankfurt am
Main, 2004, p. 122, and ANDREA RAFFLER and PETER HELLICHE, Unter welchen
Voraussetzungen ist die Überwachung von Arbeitnehmer-e-mails zulässig?, in NZA, No. 16, 1997, p.
862.



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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


unacceptable loss of privacy that will have an impact on his dignity and
autonomy (4).
       Workplace privacy is an important part of the basic autonomy rights of
individuals in our society. People spend a big part of their lives in the
workplace. What happens in the workplace – including whether privacy is
respected – can have a profound effect on employees’ sense of dignity, their
sense of freedom, and their sense of autonomy. Continual surveillance is
dehumanizing.

2. The electronic control of the employer
        2.1. Today, there is a changing of the legal landscape of the right of the
employer to control and monitor employees behaviour and the possibilities for
infringing on privacy in the workplace are greater than ever before. Employers
are increasingly keeping track of employees through many systems and can
monitor and control virtually every aspect of an employee’s working time -
from psychological tests to web-browsing records, video surveillance,
keystroke monitoring, genetic testing, RFID, control of electronic
communications, online social networks and global positioning systems,
among others (5). And if the employee monitoring is not new, the ability to
monitor has become greatly expanded due to advances in technology. So, it
seems very important to protect personal data and privacy of individuals. And
nowadays any content including personal data, be it in the form of texts or
audio-visual materials, can instantly and permanently be made accessible in
digital format worldwide. The internet has revolutionized our lives by
removing technical and institutional barriers to dissemination and reception of
information, and has created a platform for various information society
services. These benefit consumers, undertakings and society at large (6). But,
at the same time, this has given rise to unprecedented cases in which a balance
has to be struck between different fundamental rights, such as freedom of


           (4) TERESA COELHO MOREIRA, A Privacidade dos Trabalhadores e as Novas
Tecnologias de Informação e Comunicação: contributo para um estudo dos limites do poder de controlo
electrónico do empregador, Almedina, Coimbra, 2010, pp. 413 et seq, and The Worker’s privacy and
the electronic control, in Journal of Law and Social Sciences, vol. 2, n.º 1, 2012.
           (5) See DOUGLAS TOWN and LORNA COBB, Notes on: GPS Technology; Employee
Monitoring Enters a New Era, in Labor Law Journal, 2012, p. 203 and TERESA COELHO
MOREIRA, O controlo dos trabalhadores através de sistemas de geolocalização, in XIX Congresso
Nacional de Direito do Trabalho, 2015.
           (6) See for more information TERESA COELHO MOREIRA, A Privacidade dos
...cit. pp. 585 et seq.



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          T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


expression, freedom of information, on one hand, and protection of personal
data and the privacy of individuals, on the other.

        2.2. The employment relationship is a perfect example of the existence
of an imbalance relationship. In reality, the worker and the employer don't
have the same freedom in what concerns the celebration of the contract nor
the stipulation of the terms of the same, what creates the emergence of a
contractual imbalance that is increased in unemployment eras as, unhappily, it
happens nowadays in Portugal.
        This imbalance situation has new developments with the increase of the
NICT because today is a very common situation of many companies to
googalize the candidates in the hiring process in the measure in that aids very
much the person that does this process or even when they are already hired.
Through a research at distance, extremely fast, free, and above all discreet, it is
possible to know the intimacy of the candidates and the workers because
frequently these data, sometimes very private, are in a free access, and many
times are the candidates or the workers who, voluntary or involuntarily, give
these information and personal data in online social networks.
        This new form of electronic control allows an easy collection and
gathering of the workers' personal data. Data that one finds disseminated in
several sources of information, appears instantly gathered in a database
without having been submitted to a previous examination.

        2.3. The NICT changed the business landscape, making it far more
competitive and the workplace considerably more fast-moving.
        But, on the other hand, it also hastened the advent of widespread
twenty-four-hour connectivity, particularly through net centric technologies.
        Together, these factors led to a re-conceptualization of work time and
private life, making that the concept of work-life balance gained new meaning
in a highly competitive and global economy in which each worker is accessible
any time, any place and employees can access their colleagues, documents, and
data from just about anywhere.
        Nowadays many people are “always on, always connected” and for
many this has become a kind of second nature, with the raising of new
problems related to health, the right to disconnect, and the huge increase in the
power of control by the employer.




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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


        The ever growing use of electronic communication brings along the
threat of a permanent connectivity, Homo Conectus, with a consequence of the
rights of privacy and data protection being somewhat compromised.
        Electronic communication networks bring along new problems and
new techniques from which other problems arise: cloud computing, ambient
intelligence and further possibilities of surveillance, either performed by the
state authorities or by powerful third parties. The growing role of technologies
in all our activities, brings along some evident effects, such as the progressive
disappearance, or at least a blurring, of the borders between professional and
personal, between public and private spheres. This inevitably shall have
consequences also at the level of the relationship between employers and
workers, having regard to the exercise of a now ever enhanced controlling
power of the employer: workers may now be monitored not only in the
working places, but anywhere and whatever they do.
        With these NICT there are countless benefits for the workers and also
for the employers, but, at the same time, these new technologies, namely the
Internet, have been originating new challenges, raising new questions and the
rethinking of old ones.
        So, as we can see, the introduction of this new technology in the work
relationship has multiple connections and many interrogations (7).
        If on one side it allowed a huge reduction of the costs and the times of
work and it accelerated the transmission of information, on the other hand,
this revolution forced an adaptation in the ways of work organization and an
enormous increase in the power of control of the employer, causing,
sometimes, an inhuman dimension of this power.

         2.4. The transformations in companies’ organization in the productive
structure and the changes in the organization of work originated by the
introduction of the new technologies, are affecting this power of control and
demanding new rationalization forms and administration of the human
resources, as well as to favour the emergence of new ways of control and
surveillance. If the control by the employer is not new nor forbidden, the

         (7) According to the Eurobarometer, number 431, from June 2015, presented by the
European Commission about Data Protection, “Respondents who said previously that they
provide personal information online were asked how much control they feel they have over
the information they provide. Just 15% of people in this group feel they have complete
control, while half (50%) say they have partial control, and nearly a third (31%) feel that they
have no control at all over their personal information online”.



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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


innovation comes from the fact that these new technologies changed this
control and have a capacity to collect data that, sometimes, seems to have no
limits. These new technologies can even led to a change in the power of
control of the employer because the most part of the control and surveillance
will be done at the distance through the computer, the smartphone and the
cloud computing.
        The introduction of the NICT in the companies is not a neutral
instrument, but, on the contrary, it is complex and capable of change the
power of control and the surveillance of the employer, directly on the nervous
system of the organization.
        We have to understand that one of the most disturbing aspects of the
introduction of the new technology is related with the new forms of exercise
of the electronic power of the employer, because they increased it in an
unusual way, without precedents. It is true that this power has always existed,
but in the traditional surveillance and control, limited, the monitoring and
electronic surveillance makes a huge jump and today we have an electronic
control «at distance, cold, incisive, surreptitious and seemingly to know
everything» (8), becoming possible a total control, or almost total, of all of the
movements of the workers' life, what causes that the worker become
“transparent” for the employers and stop feeling free (9). At the present time,
with the new technologies, the electronic control increased exponentially
because it is much more present (10).
        Another quality of these NICT that increases, and a lot, the possibility
of the control is it ambivalent character in the measure that these technologies
are used, simultaneously, as instrument to carry out the activity and as
mechanism of control of the work done by the worker. It is operated, this
way, a perfect concentration in the same mechanism of the activity and of
control, in such a way that while the computer, or the smartphone or the
laptop, is used as work instrument, it is, at the same time, providing a huge
amount of data to the employers originating a direct participation of the


          (8) See PATRICIA WALLACE, The Internet in the workplace: How New Technology is
Transforming Work, Cambridge University Press, Cambridge, 2004, pp. 3-4 and also JAVIER
THIBAULT ARANDA, El derecho español, in Tecnología Informática y Privacidad de los
Trabajadores, Thomson Aranzadi, Navarra, 2003, p. 59.
          (9) LARRY O. NATT GANTT, II, An affront to human dignity: electronic mail monitoring
in the private sector workplace, in Harvard Journal of Law & Technology, vol. 8, n.º 2, 1995, p. 345.
          (10) TERESA COELHO MOREIRA, As novas tecnologias de informação e comunicação e o
poder de controlo electrónico do empregador, in Estudos de Direito do Trabalho, reimp., Almedina,
Coimbra, 2016, pp. 14-15.



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           T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


worker in his control. The worker becomes, simultaneously, an active and
passive subject of a machine in such a way that is possible to accomplish a
bidirectional control (11).
         And with this concentration new problems have emerged because the
main work tool of the workers is also the instrument that controls them,
arising a new form of control much more intrusive and that controls almost
everything even the way the worker thinks, because these instruments leave
tracks that are immediately perceptible by the employer. It is the new
fingerprints (12) related with different features of the person: personal,
professional, political, social, that the worker leaves, consciously or not, and
that through an easy and simple research in the Internet allows to build the
workers and the candidates profiles. The idea of the Big Brother that could
control everything seems old, very simple and almost a dream, when
compared with these countless “Little Brothers”, truly nightmares that can
follow us and know everything to the tiniest detail and the ghosts of the
panoptic seem very real, like strange mirrors that we look and we see a
different person (13). And if we add the possibility that many companies give
to their employees to bring their own devices, we can see how this control
seems to have no limits. If the employer encourages his workers to bring their
devices their smartphones, their tablets, their laptops, their touchscreens to the
workplace, where do we draw the line? What are the limits?
         And the answer is related with data protection and the positive notion
of privacy because just data that is pertinent, necessary and appropriate should
be collected for the lawful treatment of personal data and in Portuguese legal
framework we can find some answers.

3. Means of remote control – articles 20 and 21 of Portuguese Labour
Code (14)

      3.1. As with other technologies, the main obstacle to the widespread
implementations of instruments of remote control like video surveillance and
GPS or even RFID systems was the cost of it but, nowadays, the costs are

          (11) TERESA COELHO MOREIRA, Every breath you take, every move you make:
cybersurveillance in the workplace and the worker’s privacy, in Masaryk University Journal of
Law and Technology, volume 7, n.º 1, 2013.
          (12) JEAN-EMMANUEL RAY and JEAN-PAUL BOUCHET, Vie professionnelle, vie
personnelle et TIC, in DS, n.º 1/2010, p. 45
          (13) EMMANUEL HOOG, apud JEAN-EMMANUEL RAY and EAN-PAUL
BOUCHET, op. cit., p. 45, footnote number 3.
          (14) In Portuguese “meios de vigilância à distância”.



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falling steadily and the images or the localization can now be fed directly to the
Internet. Employee monitoring can be done using minute surveillance cameras
pointed directly at the selected host computer to monitor and record
everything that is said and done by the worker on that specific host or it can
be done by real time surveillance, including the use of Internet minute cameras
or RFID or GPS instruments that record and transmit real-time information
over the Internet.
          Today the amount of digitalised content available online has exploded.
It can be easily accessed, consulted and disseminated through social media, as
well as downloaded to various devices, such as tablet computers, smartphones
and laptop computers.
         Pointed these examples of new uses to this type of surveillance we can
see how it continues to be an issue which regularly leads to workplace
disputes, particularly when these devices are installed without prior
consultation or are used surreptitiously for employee performance monitoring
or disciplinary purposes. It seems to us that, sometimes, the real privacy threat
lies not so much in the existence of the surveillance itself, even though that is
bad enough, but how and where they are deployed and the question of
proportionality and transparency arise as also the issue of overt and covert
monitoring of the workplace.
         In several key aspects the use of surveillance cameras in the case of
video surveillance today poses greater concerns than in the past, when camera
images would be monitored in real time or recorded on magnetic tape (15). In
reality, these new technologies transformed the nature of data processing and
surveillance. Until recently the surveillance of employees and the processing of
their personal data was subject to physical limitations but, now, these new
technologies make intensive surveillance practical.
          These days’ data from cameras is more likely to be in digital form, and
as such can be stored on an indefinite basis along with other digitised data.
Potentially, for example, digitised data from surveillance cameras focused on
individual employees could be linked to other digital data on that individual,
for example HR data or data taken from email monitoring or recorded
telephone conversations, forming a very powerful integrated set of

          (15) Vd. TERESA COELHO MOREIRA, Transparency and data protection in the
workplace: the workers control by video surveillance, in Transparenz – Tagungsband des 17.
Internationalen Rechtsinfomratik Symposions – IRIS 2014, Oesterrechische Computer Gesellschaft,
Áustria, 2014, and JOSH GREENBERG, Supplementing panoptic paradigm: surveillance, moral
governance and CCTV, in Theorizing Surveillance – The panopticon and beyond, Willan Publishing,
London, 2008, pp. 230-231.



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information available to an employer (16). And, at the same time that cameras
are shrinking in size and cost, their capabilities are expanding (17).
        It is increasingly necessary in other words to see these forms of remote
control not simply as a stand-alone security measure but as a source of data
which is available for searching and analysis using the full power of
contemporary computing.
        Given this sort of development, it becomes even more important to
ensure that the use of these ways of control are adequately used.
        The specific features of the processing of personal information
included in sound, image and localization data have been expressly highlighted
by Directive 95/46/EC, which refers to them expressly in several points (18)
and in Portugal by Law 67/98, that transposed this Directive, and articles 20
and 21 of Portuguese Labour Code.

        3.2. In order to the use of video surveillance or GPS technology be
legal, the employer has to obey to several principles related all with the
protection of personal data.
        The first principle is the legitimacy one meaning that just data that is
pertinent, necessary and appropriate should be collected for the lawful
treatment of personal data and in article 20, No. 2 of Portuguese Labour Code
there are two possibilities of install this type of technology: for security of
people or goods and when special features related with the activity justify that.
        The employer cannot install this kind of remote control aimed directly
at controlling, from a remote location, quality and amount of working
activities, therefore entailing the processing of personal data in this context
and that is clearly established in article 20, No 1 of Portuguese Labour Code
(19). It is absolutely forbidden to use these instruments as a way to control the


           (16) With the same opinion BELLAVISTA A., Il controllo sui lavoratori, Giappichelli,
Torino, 1995, THIBAULT ARANDA, El control multimédia de la actividade laboral, Tirant lo
Blanch, Valencia, 2006, p. 18, and GOÑI SEIN, Controles empresariales: geolocalización, correo
electrónico, Internet, videovigilância y controles biométricos, in Justicia Laboral, No. 39, 2009, p. 42.
           (17) As FREDERICK S. LANE III, The Naked Employee – how technology is
compromising workplace privacy, AMACOM, USA, 2003, p. 119, if in the nightmarish 1984, of
GEORGE ORWELL, perpetual surveillance was a given and the omnipresent telescreen
was warning enough that you might be under the critical eye of the Tough Police, nowadays,
if GEORGE ORWELL were writing today he might felt different.
           (18) And now also in the General Data Protection Regulation.
           (19) “1 - O empregador não pode utilizar meios de vigilância a distância no local de
trabalho, mediante o emprego de equipamento tecnológico, com a finalidade de controlar o
desempenho profissional do trabalhador. 2 - A utilização de equipamento referido no



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workers performance which has raise many questions and different decisions
from the Appeal Courts in Portugal about whether it is possible to use as a
proof in disciplinary cases the images or the data from these technologies
because it can also be a proof about the performance of the workers.
       The case is slightly different as regards these surveillance systems that
are deployed, subject to appropriate safeguards, and occupational safety
requirements and also entail distance monitoring, albeit indirectly.
       We think that in some cases it is possible to use these data when we are
facing a criminal offence, like theft or physical aggressions, committed by the
worker. But, even in those cases, the employer cannot use as a proof the
images to punish an employee if it is related with work performance (20) (21).
       This principle of legitimacy comprises the truly fundamental and main
principle of data protection (22). The other principles are all related with this

número anterior é lícita sempre que tenha por finalidade a proteção e segurança de pessoas e
bens ou quando particulares exigências inerentes à natureza da atividade o justifiquem“.
          (20) There are many cases regarding this possibility. Recently from the Tribunal da
Relação        do        Porto        one       from        19th         of        October       2015      -
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/b655a445dc93958780257
b340054d89c?OpenDocument&Highlight=0,teresa,coelho,moreira –, from the Tribunal da
Relação         de          Lisboa         from         8th          of         October         2014       -
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/a7ba4c74d8f7a15780257d
70004d5782?OpenDocument&Highlight=0,videovigil%C3%A2ncia , from the tribunal da
Relação            de           Coimbra,           6          of           February            2015        -
http://www.dgsi.pt/jtrc.nsf/c3fb530030ea1c61802568d9005cd5bb/fe545bb508b68e698025
7dee004bf0bd?OpenDocument&Highlight=0,videovigil%C3%A2ncia, from the Tribunal da
Relação               de             Guimarães,             25              June             2015          -
http://www.dgsi.pt/jtrg.nsf/86c25a698e4e7cb7802579ec004d3832/51296bb510548a958025
7eb60055f9d6?OpenDocument&Highlight=0,videovigil%C3%A2ncia.
          See, for example, the case of Tribunal da Relação de Lisboa, where it was accepted
as a proof the images of a worker in a casino that committed theft against his employer: “É
de aceitar as imagens captadas por sistema de videovigilância como meio de prova em
processo disciplinar e na subsequente acção judicial em que se discuta a aplicação de sanção
disciplinar, mormente o despedimento, desde que sejam observados os pressupostos que
decorrem da legislação sobre a protecção de dados e concomitantemente se conclua que a
finalidade da sua colocação não foi exclusivamente a de controlar o desempenho profissional
do trabalhador. Num quadro circunstancial assim apurado, o trabalhador não merece – nem
a lei lhe confere - maior protecção do que aquela que é conferida aos demais cidadãos e,
logo, o meio de prova é lícito e admissível”.
          (21) For more developments and with the analysis of more cases see TERESA
COELHO MOREIRA, A Privacidade dos Trabalhadores…, cit., pp. 439 et seq., and Estudos de
Direito do Trabalho, reimp., Almedina, Coimbra, 2016.
          (22) BELLAVISTA A., I poteri dell’ imprenditore e la privacy del lavoratore, in DL, Vol. 76,
No. 3, 2002, p. 152, GRAGNOLI E., La prima applicazione della lege «sul trattamento dei dati
personali» ed il rapporto di lavoro privato, in RCDP, No. 4, 1997, p. 703, and AIMO M.P., I
«lavoratori di vetro»: regole di trattamento e meccanismi di tutela dei dati personali, in RGL, No. 1, 2002,
pp. 106-107.



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legitimacy principle because data should be appropriate, pertinent and not
excessive in relation the legitimate purpose; data should be exact, complete,
accurate and precise in relation with that purpose; and data should only be
conserved for the time and the needs of the initial purpose.
        Restrictions to the workers' privacy should respect this legitimacy
principle. That is to say that even if the restrictions are in abstract acceptable
in abstract, they should always be justified according to the nature of the
activity and proportional to the initial purpose (23).
        It’s essential that the purpose be defined in the most concrete and
accurate way because it is only with this detailed specification that we will be
able to prove the proportionality of the personal data that has been treated
and to check the legitimacy of all other operations that were undertaken.
        The purpose intended by the employer has to be legitimate, that is, it
should be in accordance with the legal and ethical framework, mainly with the
fundamental rights, especially since we are dealing with a work relationship. In
fact, this principle represents an important limit to the treatment and
conservation of personal data under any form, mainly imposing restrictions in
the elaboration of automatic profiles based in the personal data treated.

        3.3. Another very important principle is the principle that data must be
adequate and proportionate to the purposes. This principle means that this
equipment may only be deployed on a subsidiary basis that is to say for
purposes that actually justify the use of such systems, as established in article
21, No. 2, of Portuguese Labour Code (24).
        The principle under which data must be adequate, relevant and not
excessive entails careful assessment of the proportionality of the arrangements
applying to the data processing once the lawfulness has been validated (25).
        The filming arrangements will have to be taken into account in the first
place, by having regard, in particular, to the following issues: the visual angle as
related to the purposes sought the type of equipment used for filming, i.e.,
whether fixed or mobile; concrete installation arrangements, like, inter alia,
location of cameras, use of fixed view and/or movable cameras; possibility of
magnifying and/or zooming in images either at the time the latter are filmed

       (23) JEAN SAVATIER, La liberté dans le travail, in DS, No. 1, 1990.
       (24) “A autorização só pode ser concedida se a utilização dos meios for necessária,
adequada e proporcional aos objetivos a atingir”.
       (25) See TERESA COELHO MOREIRA, A Privacidade dos Trabalhadores...,cit., pp.
500-502, and GOÑI SEIN, La Videovigilancia Empresarial y la Protección de Datos Personales,
Thomson Civitas, Navarra, 2007, p. 123.



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           T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


or thereafter, i.e., as regards stored images; it is necessary to consider the
decision to be taken as to retention of images and retention period. This latter
one has to be quite short and in line with the specific features of the individual
case (26).

        3.4. The last but not the least important principle that the employer has
to respect is the principle of transparency which is directly connected with the
problem of covert surveillance.
        Openness and appropriateness in the use of this surveillance equipment
entail the provision of adequate information to data subjects pursuant to
article 20, No 3, of Portuguese Labour Code (27). This article establishes that


          (26) There is a Decision of the Portuguese Supreme Court – Supremo Tribunal de
Justiça           -         from         8th         February          of         2006        -
http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/65e859e4729cc76880257
12d00421026?OpenDocument&Highlight=0,videovigil%C3%A2ncia, that dealt with this
principle of proportionality.- This Decision is also very important because it clarified the
meaning of “security reasons” and we think it is a very important clarification. “Protecção da
segurança das pessoas e bens, enquanto finalidade específica da recolha e tratamento de
dados pessoais, tem em vista a prevenção da prática de crimes, o que pressupõe, pela
natureza das coisas, que a utilização de videovigilância com esse objectivo deva reportar-se a
locais onde exista um razoável risco de ocorrência de delitos contra as pessoas ou contra o
património. E isso tanto é válido para a utilização de câmaras de vídeo pelas forças policiais
relativamente a espaços públicos (conforme resulta expressamente do disposto no artigo 2º,
n.º 1, alínea c), da Lei n.º 1/2005), como para a vigilância em instalações ou estabelecimentos
privados. Neste último caso, o risco é potenciado essencialmente pela circunstância de se
tratar de locais abertos ao público, e decorre da eventualidade de esses locais serem
frequentados por pessoas anónimas sem possibilidade de qualquer prévio controlo de
identificação“. On the other hand it was decided that “Não se prova, em suma, que exista
uma situação de mera captação difusa de imagens, com intersecção de diversos planos de
movimento, e dirigida apenas à detecção de factos, situações ou acontecimentos incidentais,
num circunstancialismo externo de potencial risco para os interesses patrimoniais ou a
integridade física das pessoas. Antes se constata que se verifica uma incidência directa e
necessariamente constrangedora sobre o campo de acção dos trabalhadores, and “A
colocação de câmaras de vídeo em todo o espaço em que os trabalhadores desempenham as
suas tarefas, de forma a que estes se encontrem no exercício da sua actividade sob
permanente vigilância e observação, constitui, nestes termos, uma intolerável intromissão na
reserva da vida privada, na sua vertente de direito à imagem, e que se não mostra de nenhum
modo justificada pelo simples interesse económico do empregador de evitar a desvio de
produtos que ali são manuseados”.
          (27) In Portugal there are many Decisions from the Appeal Courts about this
principle. For example from the Tribunal da Relação do Porto there is a very interesting case
from              17th           of          December              of           2014          -
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/d8b30e6de8712dd58025
7dc700551703?OpenDocument&Highlight=0,teresa,coelho,moreira , where the employer
used as proofs in a dismissal case images that he had collected by remote video surveillance
without the prior knowledge of the employer and without the specific authorization of the



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           T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


“the worker has to be explicitly informed about the existence of remote
surveillance in the workplace and the employer must publicize its existence by
a poster saying “Location under vigilance of video technology” or “Location
under vigilance of video technology with recording of images and sound”.
        However, in our opinion, we have to make a broader interpretation of
this information because it is also applicable to GPS devices, RFID and web
surveillance.
        The employees along with other persons that visit the employer’s
premises, should be aware of the fact that this surveillance is in operation,
even where the latter is related to public events and shows or to advertising
activities. They should be informed in a detailed manner as to the places
monitored. It is not necessary to specify the precise location of the
surveillance equipment, but, nevertheless, the context of surveillance is to be
clarified unambiguously and the information should be positioned at a
reasonable distance from the places. Information must be given to employees
and every other person working or visiting the premises. This should include
the identity of the controller and the purpose of the surveillance and other
information necessary to guarantee fair processing in respect of the data
subject, for instance in which cases the recordings would be examined by the
management of the company, the recording period and when the recording
would be disclosed to the law enforcement authorities. However, the
provision of information through a symbol cannot be considered as sufficient
in the employment context.
        The Portuguese Labour Code in articles 20 and 21 stresses the
importance of key data protection principles, including the proportionality of
use and prior notification of those subject to surveillance. In the particular
context of the workplace, it is important to highlight the safeguarding of
employees’ “rights, freedoms and dignity”. Surveillance is absolutely forbidden
in premises that either are reserved for employees’ private use or are not
intended for the discharge of employment tasks – such as toilets, shower
rooms, lockers and recreation areas, like the places where the employees eat.
        It is also important to notice that the images collected exclusively to
safeguard property or detect, prevent and control serious offences should not
be used to charge an employee with minor disciplinary breaches (28). It is also

Portuguese Data Protection Authority – CNPD. The proofs were considered inadmissible
and the dismissal was found to be invalid.
         (28) This is one of the most frequently cases in courts: the use of the images to
disciplinary and punish employees.



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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


crucial to highlight that employees should always be allowed to lodge their
counterclaims by using the contents of the images collected (29).
        There is some discussion around the issue of the possibility of covert
surveillance because it presents particular concerns and it is not admissible in
Portugal and in many European Countries. In Portugal if the employer uses
the images as a proof it is not going to be accepted in courts because it is
considered a clear violation of the principle of transparency and good faith
(30).

        3.5. According to article 21, No.1, it is crucial that prior to the
installation of this technologies there is an authorization of the Portuguese
Data Protection Authority (31). Without this any proof will be considered
unlawful.
        There is also the need to have an opinion of the workers’ council,
according to article 21, No. 4 (32). However this opinion is not binding and
the employer can use these technologies even if the opinion of the workers’
council is negative. He only needs the authorization of the Portuguese Data
Protection Authority. Therefore, the employer, which is the data controller,
cannot carry out any data processing operations before the Portuguese Data
Protection Authority – CNPD - issues the due authorization.

      3.6. The principles established in articles 20 and 21 of Portuguese
Labour Code also apply to the use and control by GPS and there is even in the
Portuguese Data Protection Authority site a form that all employers have to



        (29) In Portugal we have cases where the employees asked to use as a proof the
images in a litigation case, like the case of Tribunal da Relação do Porto, 9th February 2015,
where it was decided that “O trabalhador pode autorizar o uso das imagens captadas por
videovigilância para prova dos factos“.
        And there are cases related with the possibility of the employee to put an end to his
labour contract due to the fact that he was put under surveillance without his knowledge –
vide case from the Tribunal da Relação do Porto from 4th of March of 2013 -
http://www.dgsi.pt/jtrp.nsf/56a6e7121657f91e80257cda00381fdf/b655a445dc93958780257
b340054d89c?OpenDocument&Highlight=0,teresa,coelho,moreira – about this issue.
        (30) The ILO accepts the secret monitoring only if: (a) if it is in conformity with
national legislation; or (b) if there is suspicion on reasonable grounds of criminal activity or
other serious wrongdoing. See Protection of workers’ personal data, 1997, p. 10.
        (31) Comissão Nacional de Proteção de Dados.
        (32) “O pedido de autorização a que se refere o n.º 1 deve ser acompanhado de
parecer da comissão de trabalhadores ou, não estando este disponível 10 dias após a
consulta, de comprovativo do pedido de parecer“.



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             T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


fill in order to ask for the authorization prior to the installation of this means
(33).
         We also think that it should be applicable to cases of RFID, because
RFID systems raise new privacy risks in addition to other forms of
surveillance of employee activity, such as video surveillance, because it
includes both locational information and date and time information, and
makes it possible to automate the tracking of workers and also to become
more precisely aware of their interactions with other employees. There are
certain risks that, while also present with some other surveillance technologies,
must be highlighted and that are related mainly with two aspects. Firstly, the
use of RFID cards for identification of goods and objects may lead to a
disqualification of some activities and impose new forms of control of the
workers with all the consequences that it leads at different levels including
health level. Secondly, and with many implications for the workers’ privacy, is
the opportunity that RFID has to locate and control the workers during
working hours, and even on their private lives, invading their privacy (34) (35).

4. Control of the electronic communications of the workers.
         4.1. These new forms of control constitute powerful means of control
and memorization, but also of analysis and of interference in the people’
privacy, and one of the major challenges put today is the regulation of the
electronic communications in the workplace, because the advancement of
modern technology, notably computers and the Internet, has made it possible
to collect and store information on a seemingly limitless scale, while also
facilitating access to it.
         The electronic control of the employer becomes, many times,
potentially vexatious, continuous and total, bringing, inclusively, risks for the
workers' health, so much physical, as psychic, namely for knowing or to feel
constantly watched. This can provoke a great pressure psychological that it can
drive, inter alia, to cases of occupational stress, burn-out syndrome,
depressions and mobbing.
         In Portuguese Labour Code there are special provisions related with
the control of electronic communications in article 22 that is related with the

          (33) https://www.cnpd.pt/bin/Duvidas/frm_geolocalizacao.aspx.
          (34) Office of Privacy Commissioner of Canada, Radio Frequency Identification (RFID)
in the workplace: Recommendations for Good Practices, 2008, p. 17.
          (35) For more developments see, among others, TERESA COELHO MOREIRA,
Estudos..., cit., p. 145 et seq., and The protection of workers' personal data and the surveillance by RFID
in Portugal, in Journal of Law and Social Sciences, Vol. 3, No. 1, 2013.



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             T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


“confidentiality of messages and access to information” (36). This article
establishes this right not only to e-mail but all other forms of communication,
including messenger (37) and online social networks (38).
        In the case of e-mails the employer will have to pay attention to the
whole constitutional protection and not only to the right of privacy. He has to
respect, above all, to the right established in article 34 of the Portuguese
Constitution and that is the secrecy of communications. This principal is
established in our Constitution but also at a criminal and labour law level and
the employer has to obey to all these principles when he intends to regulate
the control of the workers' e-mails.
        Having in mind this legal framework the employer cannot appeal to his
power of control to limit the exercise of the constitutional right established in
article 34 and, also, in article 22 of the Portuguese Labour Code, that
establishes in number 1 that “The employee is entitled to reserve and to the
confidentiality of contents of personal messages and access to non-
professional information sent, received or consulted, namely through e-mail”,
and in number 2 – “The preceding clause does not prejudice the employer’s
right to establish rules regarding the use of undertaking’s electronic resources,
namely e-mail”.
        Even if the computer used by the worker is property of the employer, it
doesn't justify the access to the electronic communications made by the



         (36) “Confidencialidade de mensagens e de acesso a informação”.
         (37) It is worth mention a case of the Tribunal da Relação de Lisboa from 7th of March
2012
http://www.dgsi.pt/jtrl.nsf/33182fc732316039802565fa00497eec/109499c90995e66d80257
9bf0050cfa4?OpenDocument&Highlight=0,messenger – that dealt with the use of messenger
by an employee using the employer’s equipment. In this case it was decided that
communications using messenger where protected by article 22 of Portuguese Labour Code
and also by the Portuguese Constitution and Portuguese Criminal Code. Vd. TERESA
COELHO MOREIRA, Controlo do Messenger dos trabalhadores: anotação ao acórdão do Tribunal da
Relação de Lisboa de 7 de Março de 2012, in Prontuário de Direito do Trabalho, n.ºs 91/92, 2014.
          (38) When using the possibilities of messenger in an online social network or the e-
mail, there should be given the same legal protection. See two cases from Portugal that
analysed the dismissal of workers using facebook and criticizing the employer. TERESA
COELHO MOREIRA, Até que o Facebook nos separe: análise dos acórdãos do Tribunal da Relação do
Porto de 8 de Setembro de 2014 e do Tribunal da Relação de Lisboa de 24 de Setembro de 2014, in
Prontuário de Direito do Trabalho, forthcoming, A privacidade dos trabalhadores e a utilização de redes
sociais online: algumas questões, in Questões Laborais, n.º 41, 2013, and The digital to be or not to be:
privacy of employees and the use of online social networks in the recruitment process, in Journal of Law and
Social Sciences, Vol. 2, No. 2, 2013.



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            T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


employee (39). The labour contract doesn't convert the employer in an active
part of the private message. The employer is a third part in the personal e-
mails and the access to the content of the sent e-mails or received by the
worker can violate the constitutionally right of the secrecy of communications
(40).
       In fact, the control exercised by the employer has always to respect the
human dignity.
       The employer is limited in his power of electronic control and he
cannot control the content of the personal e-mails and, at this point, we
should made some distinctions.
       First of all we should make a distinction between professional e-mails
and personal e-mails, even if, sometimes, the distinction is very difficult.
       But, before doing that, we have to distinguish between received e-mails
and sent e-mails. The employer must assure that workers can eliminate
received e-mails whose entrance in their mailbox are not able to control, like
spam, and so on, and that sometimes are more related with a bad security of
the employer than with a voluntary behaviour of the workers.
       Second, we consider that it is better to separate professional e-mails
from personal ones regarding different ways of control by the employer.


          (39) Regarding this part there are also some jurisprudence about it. From the
Supremo Tribunal de Justiça there is the case from 5th of July of 2007, Tribunal da Relação do
Porto, from 8th of February of 2010, and Tribunal da Relação de Lisboa, from 5th of June
2008 and 30th of June 2011 – www.dgsi.pt. On these cases it was decided that “não é pelo
facto de os meios informáticos pertencerem ao empregador que afasta a natureza privada da
mensagem e legitima este a aceder ao seu conteúdo”. Also, in the case of the messenger the
Court decided that “Também não nos parece válido o argumento jurídico desenvolvido pela
Ré no sentido dos referidos acesso e conhecimento serem permitidos pela circunstância das
referidas conversas/mensagens se acharem guardadas no servidor central da empresa, a ela
pertencente, pois, por um lado, não perderam a sua natureza de pessoais e confidenciais por
esse facto e, por outro, face a tal justificação, não se vê porque a entidade empregadora, em
função da simples propriedade sobre o computador profissional distribuído à Autora, não
poderia proceder da mesma forma, para o caso desse registo estar conservado no disco
rígido daquele. Essa tese, levada a um extremo, conduziria a resultados absurdos,
franqueando à administração da Apelante ou aos funcionários em que delegasse tais tarefas, a
possibilidade de, querendo, abrir as carteiras e fiscalizar o conteúdo das malas ou dos
telemóveis dos trabalhadores pelo singelo facto de estarem guardados dentro de gavetas ou
armários colocados dentro das suas instalações e de todo o mobiliário e demais equipamento
existente na empresa lhe pertencer ou lhe estar afecto por um título jurídico legítimo, o
mesmo se podendo dizer com referência às viaturas particulares estacionadas no seu parque
ou garagem, caso existam.”
          (40) See INMACULADA MARÍN ALONSO, El poder de control empresarial sobre el uso
del correo electrónico en la empresa – su limitación en base al secreto de las comunicaciones, Tirant
monografias, Valencia, 2005, pp. 159-160.



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          T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


        It seems to us excessive to include inside the protection of the secrecy
of the communications the professional e-mails in the case of existing a prior
clear policy concerning the use of these and separate bill accounts from e-
mails. In the case of the professional e-mails there is a professional
relationship between the worker and the employer and the last one can control
the content of these messages, but only if he respects all of the requirements
for a correct control, mainly the principle of proportionality, good faith and
transparency. However, this control has to be the least intrusive.
        Nevertheless, the employer cannot control everything because there is
the Data Protection Act and the principles laid down in Portuguese Labour
Code, namely the legitimacy of the purpose and of the compatibility with this
purpose, and all the principles of the electronic control of the employer,
mainly the principle of proportionality and transparency.
        When there is a clear policy concerning the use of these means with the
establishment of proportional limits, in agreement with the principle of good
faith and that the workers know, respecting the principles of information and
publicity, we believe that it should be considered lawful the access of the
employer to the worker's professional e-mail without the need of a prior
judicial authorization.
        Nonetheless, this type of control cannot be permanent and should
respect the principle of proportionality. And the opening and reading of these
e-mails should be exceptional, and should happen only in the worker's
presence, unless he is not there for some reason and that is exactly the cause
of the visualization.
        We believe that is necessary the presence of an objective reason for the
exercise of this control and surveillance and that it cannot be acceptable
arbitrary, indiscriminate or exhausting controls of the workers e-mails. If this
happens, this control is illicit and unlawful because it violates the principles
that have to be present when the employer decides to control, mainly the
transparency, the proportionality and good faith.
        On the other hand, the employer has to respect the principle of the
adequacy which means that he cannot know or control more than what is
necessary according with the principle of legitimacy and using the less
intrusive techniques respecting the principle of proportionality.

      4.2. In the case of messages marked as personal or of messages that are
not qualified as such but that is deemed by the content of the external data




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           T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


that are personal, the situation is totally different (41). In these cases the
messages are protected by the right to the secrecy of the communications
established in article 34 of the Portuguese Constitution and also in article 22 of
our Labour Code. The employer cannot control the content of these messages
not even in exceptional situations when there are suspicions of abuse. Any act
of interception of the communication contained in this part of the mail box
will constitute a violation of the articles referred previously, and the obtained
proof will be considered null and unlawful - article 32, No. 8, of Portuguese
Constitution.
        The employer, before reasonable suspicions of contractual
infringements by the worker, cannot control the content without a prior
judicial authorization, as established in article 34 of the Portuguese
Constitution.

        4.3. In the case of a lack of a clear policy about the use of these
electronic communications or even if that exists, but allows a random use of
the same, that is, in the case that the worker has only one e-mail account and
he uses it for personal or professional the answer is not an easy one. In these
cases it seems to us that the e-mail will be protected by the right to the secrecy
of the communications enjoying, in principle, the inviolability of this right.

        4.4. The employer, in spite of not controlling the content of the
messages in the case of the personal e-mails, will be able to control some
external data to try to see if the workers are using correctly or not these
instruments of communication.
        It seems to us that it is necessary to protect, in a certain way, the
interests of the employer and, for that, if it was not permitted to control these
data he would be without any possibility of control.
        In the defence of this opinion we can add another argument established
in Directive 2002/58/EC Article 6, No. 2, that “Traffic data necessary for the
purposes of subscriber billing and interconnection payments may be

         (41) See Decision of the Supremo Tribunal de Justiça of 5th of July of 2007
establishing that “a falta de referência prévia, expressa e formal da “pessoalidade” da
mensagem não afasta a tutela prevista no art. 21.º, n.º 1 do CT.” And that “Tendo o Director
da Divisão de após Venda acedido à pasta de correio electrónico, ainda que de boa fé por
estar de férias a destinatária da mensagem em causa, e tendo lido esta, a natureza pessoal do
seu conteúdo e a inerente confidencialidade impunham-lhe que desistisse da leitura da
mensagem logo que se apercebesse dessa natureza e, em qualquer caso, que não divulgasse
esse conteúdo a terceiros”.



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          T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


processed. Such processing is permissible only up to the end of the period
during which the bill may lawfully be challenged or payment pursued”, as well
as article 6, No. 2, paragraph b), of the Law n.º 41/2004, of August 18, that
transposed this Directive. As we can see, the Directive accepts in certain
circumstances, the possibility of the treatment of certain traffic data.
        The problem is knowing what type of external and traffic data the
employer can control.
        He has at his disposal, without violating the fundamental right of
secrecy of communications, enough juridical means to control and to sanction
the worker's improper behaviour. He can control, verbi gratia, the cost of the
work tool, the time spend for the workers in the use of the same and the
access to the internet. He can even control data traffic, that, although in
principle is protected by the right to the secrecy of communications, through
the new characteristics of these means, becomes patent as it will be the case of
the control of the senders of the messages, of the subject, of the type of
attachment and its size, as well as the number of sent messages, and the time
of permanence in the Internet. By controlling these circumstances, the
employer, applying the principle of good faith can gather proofs for a
disciplinary case, based in an inadequate or abusive use of the work
instruments.
        But even the control of professional e-mails has to obey to the
principle of minimalist data processing, meaning that personal data has to be
erased or rendered anonymous once it is no longer required for the purposes
for which it has been kept. The employer has to take all reasonable steps to
ensure that the data is not factually misleading. This is particularly so where
the data is used to make decisions with respect to specific individuals.

       4.5. The employer, previously to the adoption of any control has to
respect the principle of transparency. The workers have to be informed of
how, where and when the control is made. The employers have to inform with
precision the limits to the use of these new technologies, limits that should be
reasonable and not excessive in relation to the initial purpose. It is absolutely
indispensable that the workers know the limitations in the use of these new
ways of communication.
       The employer, in respect of this transparency principle and the good
faith has to allow his workers an explanation of his policy regarding the use
and control of these communications. The employer should supply the
workers the indications about the use of the electronic mail inside of the



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             T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


company, describing the ways the means of communication of the company
can be used for personal communications by the workers, namely the
limitation of the hours and the duration of the use, seeming also, in line with
what was established in the Working Document on the Surveillance of Electronic
Communications in the Workplace by the Article 29 Working Party, inter alia, if a
worker is entitled to a electronic mailbox for merely personal use, if the use of
webmail mailboxes is allowed in the work and if the employer recommends
the use for workers of a webmail mailbox for merely personal use. He should
inform, also, on the period of storage of a possible copy of safety and
information on when and how the messages are definitively destroyed.
        We think that the most appropriate way to accomplish this
transparency principle is the elaboration of rules of good conduct related with
informatics or a kind of Charters of informatics about the use of this type of
communication instruments, the internal rules and obeying to all the legal
formalities (42).
         In these Charters the employer should settle down the right of each
worker to a personal mailbox of e-mail, in the measure that is preferable to the
separation between personal mailboxes and professional ones, or, at least, to
the possibility to have a personal folder inside the normal mailbox; it should
still be permitted the voluntary encryption of the personal communications;
the worker can use the e-mail for his communications with the trade unions
and with the public administration for personal and professional subjects, as
well as with third parties when he has personal needs. However in these
Charters it could be included that personal e-mails should be legal and not
include scandalous statements, or to harass people or to discriminate anyone
based in their origin, race, ethnics, age, disability, nationality, sex, gender,
sexual orientation, religion or belief (43).

          (42) In the same sense, inter alii, AALBERTS, TOWNSEND, WHITMAN e
SEIDMAN, A proposed model policy for managing telecommunications-related sexual harassment in the
workplace, in Labor Law Journal, 1997, p. 617, STENICO E., L’eserzicio del potere di controllo
«informático» del datore di lavoro sugli strumenti tecnologici di «ultima generazione», in RGLPS, I, 2003,
pp. 131-132, JAY KESAN, Cyber- working or Cyber-Shrinking?: a First Principles Examination of
Electronic Privacy In the Workplace, in Florida Law Review, vol. 54, 2002, pp. 299-300,
JENNIFER FISHER, Implications of electronic mail policies for fairness and invasion of privacy: a field
experiment, University of Albany, 2002, in www.proquest.com, p. 3, ROGER BLANPAIN,
Some Belgian and European Aspects, in Comp. Labor Law & Pol’y Journal, vol. 24, 2002, cit., p. 58,
and WILLIAM BROWN, Workplace Privacy and Technological Control, University of Pittsburgh,
2003, in www.proquest.com, p. 14.
          (43) RODRIGUÉZ-PIÑERO ROYO e LÁZARO SÁNCHEZ, Hacia un tratamiento
integrado de la comunicación electrónica no professional, in Relaciones Laborales y Nuevas Tecnologías, La
Ley, Madrid, 2005, , pp. 39-40.



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             T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


        But also the professional e-mails cannot contain any of these situations
and the worker that violate these rules can be sanctioned, as it happened in
France where a commercial sent to his customers e-mails containing
attachments with pornographic pictures "to improve the professional
relationships" with the same ones. The worker was dismissed, decision
confirmed by the Cour of Cassation, on October 22, 2008 (44).
        The employer, in the Charters of Good Conduct about the use of these
communications, can establish limits as for the time that the workers can be
using them, as well as to the type of attachments that they can sent, limiting
certain types that can be related with crimes.
        These Charters have to settle down rules on the access to the e-mails
when the workers are temporarily absent, and that is exactly the reason why
the employers can and have to control the workers' professional electronic
mailbox. In these cases the workers are previously informed about this
situation and have given their previous consent, although once again we
reaffirm that such permission doesn't legitimate the possibility of the employer
to open or to read the worker's private correspondence. When the worker is
absent the Charters should establish the need to create an instantaneous
message of warning for the worker’s contacts and, if necessary, the e-mail of
who is responsible for continuing to answer to the workers professional e-
mails. On the other hand, these responsible workers should always be the
same ones and should only be the ones to have access.
        The workers have the obligation to distinguish correctly the e-mails of
professional nature and the ones of personal nature, assuming the obligation
of not classify professional e-mails as personal and vice-versa, owing the
company to assume as professional all the e-mails that are not qualified as
personal (45).

5. Conclusions
       The use of new information and communication technologies have
spread rapidly in recent years. This raises numerous questions for employers,
employees and their representatives, especially in terms of the relationship
between workers’ privacy and employers’ need to control. However one must
not forget that even if with this new technologies it is technically possible to

           (44) JEAN-EMMANUEL RAY, Actualités des TIC, in DS, No. 3, 2010, p. 273.
           (45) TERESA COELHO MOREIRA, A Privacidade dos Trabalhadores…, cit., pp. 782
et seq., and The worker’s privacy and electronic control, in Journal of Law and Social Sciences, Vol. 2, No.
1.



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             T. COELHO MOREIRA, The Electronic Control of the Employer in Portugal


control almost everything without the employee’s knowledge, legally that is
not admissible and employer cannot control everything or surreptitiously his
employees because it is a clear violation of the principles laid down in
Portuguese Constitution and in Portuguese Labour Code.
        We have to remind and defend that the workers don’t leave behind
their rights as persons and mainly their right of privacy when they celebrate a
labour contract. In fact, they have a founded and legitimate expectation of a
certain degree of privacy in the workplace because they develop a significant
part of their relationships with other human beings at work.


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