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An employee can lawfully record colleagues without their consent, provided the recording is aimed at safeguarding his or her rights. This is what the Italian Supreme Court stated recently in its judgment dated 10 May 2018 (no. 11322), thereby acknowledging that the exception set out in the relevant Italian privacy legislation (that is, Section 24 of Legislative Decree no. 196/2003) applies in an employment context. In particular, the Supreme Court confirmed that personal data could be processed even in the absence of prior consent from the individual concerned if this processing is carried out:
- directly by a person taking part in the conversation;
- in order to establish or defend a legal claim before the courts; and
- provided that the data processing is undertaken solely and exclusively for that purpose and is limited to the minimum period of time strictly necessary.
In the case in question, the employer dismissed one of its employees, alleging that the trust underlying the employment relationship had been impaired as a consequence of the employee recording conversations with his colleagues in the workplace, during working hours, without the latter being aware that they were being recorded.
The Supreme Court ruled that the employee’s behaviour did not qualify either as a criminal offence or as an offence punishable by disciplinary measures, since the employee needed the recordings as evidence of the serious problems that existed in the workplace and, ultimately, to safeguard his position within the company in the context of widespread code of silence that was proven to operate there. Furthermore, the dismissed employee successfully took adequate precautionary measures to prevent the data he had collected from being disseminated.
In this context, the employee’s actions were deemed perfectly lawful, given they met all the requirements set out in the law for the exemption from liability resulting from legitimate exercise of a right to apply. As a consequence, his dismissal was deemed unfair.
In this case, the Supreme Court has confirmed that its prior case law on the exemption from liability that arises from the use or processing of personal data not authorised in advance, where such use or processing is made by the person directly taking part in the conversation and safeguards a legal right applies in an employment context. The exemption was previously covered in, among others, Supreme Court, United Sections, judgment no. 3034/2011 and Supreme Court judgments nos. 27424/2014 and 21612/2013.
Conversely, in a more recent judgment (no. 11999) dated 18 May 2018, the Italian Supreme Court clarified that if a recording is made without the colleagues taking part being aware of it by an individual who is not taking part in the conversation, and the recording is aimed at suing the employer, this action does not fall within the scope of the exception. It is therefore unlawful and may justify the dismissal of the employee.