Employees’ rights and obligations facing the use of social media: Limits between the right to intimacy and the employers authority

According to Article 15 of the Colombian Constitution, the right to intimacy has been recognized as a fundamental right that must be strongly protected by the State. The mentioned provision establishes that correspondence and other forms of private communication are unbreakable; this means that they cannot be intercepted or recorded unless if it exist a Court decision that orders it, and in every case while respecting the formalities prescribed by law. On the other hand, in accordance with the Universal Declaration of Human Rights: “no one shall be subject to arbitrary interference in his/her private life, family, domicile, nor no one honour and reputation shall be transgressed”.

Intimacy has been understood by the Colombian Constitutional Court as the exclusive sphere of each individual, reserved from the intrusion of society. Therefore, this fundamental right seeks for the respect for the individual private live against third parties interference.
In this sense, the intrusion into the private sphere of an individual takes place when a third party permanently observes and/or invades an individual in public areas where it is supposed that he/she has the right to develop freely.

However, the right to intimacy cannot be seen as absolute and may be subject to limitations as a result of the interrelation with other legal and constitutionally relevant rights such as the employer authority. However, the restriction of the right to intimacy must be reasonable and proportional.
The employer has the faculty to regulate the access to social networks and personal e-mails due to its interest to preserve high productivity levels and to avoid network congestion. In the specific case of labor relations the legality of the surveillance of the employees´ use of social media, will be restricted depending on the labor agreement executed between the parties and the provisions included in the internal working regulations regarding the use of social media.
Regardless of how this issue is handled by the company, the important aspect is that an authorization shall exist to access to the browsing history of the employees´ computer, but never to the history of each social network and personal e-mail .

In this regard, the International Labor Organization (ILO) establishes that the essential point consists in advising the employees about the internal policies of the employer regarding the surveillance of social media use.