This post was contributed by Yanet C. Aguiar, Partner, and Valentina Albarrán, Associate, Norton Rose Fulbright Caracas.
Social media has become the new way of expression of everyone, from children to adults, now more than ever people share their lives. There is no question about each person’s right to share as much of their personal lives as they find appropriate, but that question remains as to whether or not people can share as much as their personal lives as they find appropriate from their work place, during working hours and using working tools.
There are no specific laws or regulations in Venezuela that clarify what constitutes “private life” or “privacy”. Privacy is related to the idea of what is most internal and hidden in a person’s private or inner life. The right to private life and privacy stated in Article 60 of the Constitution is the right that every person has to protect her/his own private life from others. It is understood that the right to privacy has been breached whenever a stranger finds out about anything that is part of a person’s private life, which includes for example, a person’s patrimonial status, correspondence, customs, way of life or personal mishap, among others.
An individual’s right to privacy must be recognized, particularly the privacy of the communications of the employees in the place where they render their services. However, this right is limited when the means used by the employees to communicate belong to a third party. In this case, the employer, who invests important sums of money to best exploit the possibilities of its business, who has to look after and maintain the work tools provided to the employees, by means of a control that allows it to foresee eventual harm to the business activity. Such harm may happen through a reduction in the employee’s productivity upon employing work tools for their own use or through infection by viruses of such work tools, as well as employer liability for the unlawful acts of dependent persons, among others.
Therefore it is necessary to weigh the employer’s constitutional right that establishes economic freedom and promotes private initiatives, as possessor and legitimate owner of the tools used by the employees for their communications, and its counter-weight constituted by the limitation imposed by the right of the employees to maintain their intimacy or elemental privacy, even in the place where the service is rendered.
It should be noted that under Venezuelan legislation it is forbidden to intercept individuals’ conversations and their inviolability is guaranteed. In fact, Article 48 of the Constitution guarantees the secrecy and inviolable nature of private communications in all their forms. Such article establishes that private communications may not be intercepted except by the order of a competent court, complying with legal provisions and preserving the secrecy of private matters that are not related to the corresponding procedure. Moreover, Article 60 of the Constitution limits the use of data processing to guarantee personal and family honor, the citizens’ intimacy and the full exercise of such rights.
The question remains: information sent using the employer’s corporate domain, computers and, analogically, the telephones ¿may be deemed “private communication”?
It would appear that employers are entitled to control the appropriate use of their own tools, provided to their employees only to efficiently perform their work activities. Nevertheless, it is necessary to limit such monitoring by the employer to a certain extent, in order to avoid undue interference of the employees’ privacy rights.
There are some external and objective controls (i.e. number of messages, the email’s reference, volume of the attachments) that may be used by the employer to identify when the employee is breaching the obligation imposed by the employment relationship.
In any case, policies and internal regulations are tools that may be used by employers to regulate the silence of the Law on this particular matter.