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 media Recent 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 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

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

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