international employment latest digital e mployment issues melanie lane and karine audouze
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International Employment – latest Digital E mployment 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”

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international employment latest digital e mployment issues melanie lane and karine audouze

International Employment – latest Digital Employment issues Melanie Lane and Karine Audouze

introduction
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 e mployment social media
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
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 media1
Digital Employment – social media
  • October 2013, Spanish Constitutional Court decision:
    • Permissible to monitor company provided email 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
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

www.olswang.com

digital employment byod1
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

www.olswang.com

eu data protection reform
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
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
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