The work causes sometimes they are decided in favor of the employee, thanks to the testimonies of this or that colleague. But for obvious reasons it is not so easy to get the support of another worker when you are at odds with your boss to the point of going to court. The recurring fear is in fact that of receiving some form of retaliation, which could result in even serious disciplinary consequences.
So what alternatives are there? How to obtain useful evidence for justice in a judicial dispute? Let’s think about the devices capable of recording a private conversation in the office: with a common smartphone today it is simple to acquire oral statements of work colleagues, superiors and all those who, in the office, could reveal information useful to their claims.
The point, however, is to understand if they are recordings audio are to be considered legitimate or not, i.e. whether these practices are capable of integrating a real crime or whether they are lawful and usable in a courtroom. Below we will find out, referring to the latest clarifications of the Cassationoffered in ordinance no. 24797.
The case
The Court’s decision that interests us here, certainly not the first on the matter (as we have also noted in this matter), is inspired by a labor dispute. In court various employees – each in the context of their own dispute – believing their rights had been violated, had presented an audio recording which included a conversation between a colleague and managers of the employing company. This conversation dated back to one corporate meeting from a few years earlier.
Precisely those managers, having been involved in the recordings without their consent and without having been informed of the same, thus chose to turn to the Guarantees Privacyto have your right to privacy protected. In particular they asked for the deletion of the filereferring to theart. 77 of EU Regulation 2016/679 – GDPRwhich states the right to lodge a complaint with the supervisory authority:
the interested party who believes that the processing concerning him or her violates this regulation has the right to lodge a complaint with a supervisory authority, in particular in the Member State in which he habitually resides, works or the place where the alleged violation occurred.
Il Guarantor for the protection of personal data However, it rejected the managers’ request, stating that the processing of data through audio recording was legitimate, because it was based on the need for judicial protection of workers’ rights.
As admitted by himself GDPR – key text in the field of privacy in the workplace – the managers contested the Guarantor’s provision and chose to turn to the ordinary court. Here the conclusions adopted by the judge were the opposite. In fact, the court accepted their requests, declaring the Guarantor’s decision illegitimate and the processing of personal data by the workers involved unlawful. In particular, the violation of the art. 5 GDPR.
The decision of the Supreme Court
The dispute reached the end Court of Cassation. This judge finally overturned the above ruling, indeed indicating the thesis supported by the judge as correct Guarantees Privacy. In fact when i personal data – in this case those of an audio recording made without the knowledge and without prior information and consent of the participants in the conversation – are presented in court, it is the exclusive task of the magistrate evaluate and balance the interests in the fieldchoosing – as permitted by law – whether or not to admit evidence that involves the processing of data relating to third parties.
According to the Court, the responsibility of data processing it therefore falls on the judge himself, who will be responsible for balancing the needs of confidentiality with those of a correct conduct of the trial, in order to write a sentence that really establishes how things went.
From this perspective, in the order this judge recalls not only national jurisprudence but also that of the EU Court of Justice, and in particular ruling C-268/21 of 2 March last year.
The Cassation thus established that, in general, theuse of personal data without the yes of the interested party – and without prior information – is permitted when it respects the principle of proportionality and minimization (referred to in the GDPR) and is aimed at the defense of a fundamental right connected to human dignity, such as that of workers (art. . 36 Constitution). In court, the latter can therefore use means to defend themselves, including by using non-consensual audio recordings.
Balancing interests in light of the GDPR
To base its decision in favor of the use of audio conversations in court, the Supreme Court recalled the articles 17 and 21 of the GDPRwhich allow – in the aforementioned balancing of opposing interests – that the right to defense can prevail over right to protection of personal data. In fact, these articles of the Regulation open to the non-application of the right to delete data and allow, vice versa, their use if there are prevailing legitimate reasons, in particular when the information is necessary for the defense in court and to obtain acceptance of one’s requests. .
This is why it is written in the ordinance that:
l’art. 17 paragraph 3 letter e) of the regulation provides that paragraphs 1 and 2 (right to erasure) do not apply to the extent that the processing is necessary for the establishment, exercise or defense of a right in court and theart. 21 (right of opposition) allows the data controller to demonstrate “the existence of compelling legitimate reasons to proceed with the processing which prevail over the interests, rights and freedoms of the interested party or for the assessment, exercise or defense of a right in court.
What changes
In essence, the recent ordinance no. 24797 of the Supreme Court it does not change a direction but confirms it, recognizing an important right of the worker. In fact, in the judgment against the employer, the latter will be able to use the recorded audio conversation, even though it took place between third parties and ‘strangers’. The justifying reason is the judicial protection of the essential right of defence, which is connected to the rights of the worker.
It is no coincidence that these words appear in the Court’s ruling:
the processing of personal data in the judicial context[…] is not subject toinformation obligation and to subject to obtaining consent provided that the data are inherent to the field of business and judicial disputes that justify their collection, they are not used for purposes other than those of justice for which they were acquired and the authorization provision exists (Cass. no. 1263 of 17/01/2022;
In conclusion, the employee will thus be able to use their electronic device to record the conversations of those who work in the company, and will be able to do so without their knowledge and therefore without their consent. This is because the Cassation he stated and reiterated a jurisprudential principleaccording to which the protection of defense means and evidence is placed one step higher than the needs of protecting the privacy of third parties.
