The role of collective bargaining in the law on the protection of personal data and the guarantee of digital rights in Spain

Abstract

The publication of the organic law no. 3/2018 on the protection of personal data and the guarantee of digital rights (LODP [Organic law on data protection]) was the explicit regulatory recognition of digital rights in labour legislation, thus far only considered by jurisprudence, and to a much lesser and residual extent by collective bargaining.

The legislative provision of the right to privacy in work has allowed the courts of justice to proceed with the material regulation of this right, but the balancing in practice operated by judges has led to the establishment of the unwritten principle of the primacy of the employer’s power of management, understood as a position of supremacy in a contractual relationship characterised by subordination, over the rights of non-interference in the private sphere, protection of personal data and the identity of the worker.

Moreover, what is known as “dialogue” between courts, even multi-level, has helped to foment a contrast - between the doctrine of the Spanish Constitutional Court and the European Court of Human Rights - between labour law and criminal law in the guarantee of these rights, and between the rulings of the social jurisdiction and the decisions of the Spanish Data Protection Agency.

This situation of legislative anomie had necessarily to be resolved, even more so after the issue of the European Data Protection Regulation (Regulation (EU) 2016/679), which came into force in May 2018 in all European Union countries. Spanish law intervenes expressly on the issue, even if the result, in terms of digital rights at work, is disappointing.