There is no specific regulation in Argentina regarding the monitoring of work or company emails and no legal prohibitions that prevent employers from establishing a corporate policy to be observed by employees in this regard.
The good-faith principle that arises from the Labour Contract Law (20,744) must be observed by employers and employees throughout the employment relationship.
The legal nature of work email (ie, an email account provided to an employee as a communication tool strictly for work purposes) is controversial. Generally, this type of account has a user name and a corresponding password.
Two opposing positions inform disputes regarding the legal nature of work emails.
Email as a work tool
From this perspective, the employer can monitor the electronic communications of employees in accordance with the Labour Contract Law, which empowers employers to manage the activity and working conditions of employees.
In this context, employees should follow the employer's instructions regarding work to be carried out. Corporate policy regarding the use of electronic devices can be included in these instructions. However, the scope of this control should be determined by examining the specific issues that may arise in that regard.
Employees should be advised that the incorrect use of electronic devices is subject to disciplinary action by the employer and could lead to dismissal for cause.
Case law has recently developed an increasingly broad definition of 'work tools', which includes not only work email accounts, but also IT systems, computers, software, internet access and their use.
Email considered employee property
From this perspective, email is comparable to any other written communication or correspondence that is covered by the constitutional right to privacy. If emails are viewed in this way, then no monitoring by employers could be deemed valid, as email correspondence is protected by the Constitution in the same way as written correspondence and private papers.
Notwithstanding the existence of these two positions, there is a tendency in the Argentine labour courts to consider work emails as a work tool and therefore to allow employers – following the prior notification of employees – to monitor work emails.
Tribunal I of the Criminal Court of Appeals recently issued an important ruling regarding an employer's ability to monitor employee emails and the admissibility of this type of communication as evidence in criminal proceedings.
In this particular case, employees of a well-known brand of women's clothing were being investigated for serious irregularities relating to the establishment of a business with a company supplier for their own benefit, while abusing the confidence that their employer had granted them – that is, their actions constituted a criminal act.
As a result, the company decided to access the employees' work email accounts. Based on the evidence gathered (ie, an email exchange between the company's foreign supplier and the employees in question), criminal proceedings against the employees were initiated on charges of breach of fiduciary duties and self-dealing.
The defence challenged the admissibility of these emails as evidence on the grounds that the employer's access to electronic communications violated the employees' constitutional right to privacy.
The court stated that once an employee is given a user name and password for a company's server or IT system, all communications effected using that system are private. Consequently, work emails cannot constitute evidence against the sender or the addressee, as all communications made to and from such an account fall within the realm of constitutionally protected privacy.
The Court of Appeals disregarded company policy warning employees that all communications could be monitored by company management. Thus, the court ruled that employee consent to this type of policy is not free and spontaneous and therefore does not validate an employer monitoring email correspondence. Rather, in accordance with Article 18 of the Constitution, it constitutes prior consent that could be considered as a self-incriminating act.
Employers and employees need to be aware of the Court of Appeals decision regarding the monitoring of work emails, as it could be the start of a new trend in this regard.
For further information on this topic please contact Javier E Patrón or Enrique M Stile at Marval O'Farrell & Mairal by telephone (+54 11 4310 0100) or email (email@example.com or firstname.lastname@example.org). The Marval O'Farrell & Mairal website can be accessed at www.marval.com.ar.
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