Right to Record Conversations
The Minister of Labour has recently stated that as long as certain conditions are observed, the recording of phone conversations between call centre employees and customers does not constitute a form of remote monitoring as prohibited under Article 4 of the Statute of Employees (Law 300/1970) and Article 114 of the Privacy Code (Legislative Decree 196/2003). The question raised with the Minister by Confindustria, Italy's main trade association for manufacturing and services companies, focused on the applicability of the remote monitoring prohibition under Article 4 of the Statute of Employees to a system for recording telephone conversations between call centre employees and customers in order to monitor the quality of customer service being provided.
Confindustria specified that the monitoring would be carried out on a sample of calls and under several important privacy protection conditions, such as: (i) encrypting the voices of the call centre employees and customers during recording in order to conceal their identities; (ii) deleting the beginning of conversations to remove the name of the employee; (iii) removing information about the employees to prevent the identification of particular individuals; and (iv) limiting and tracking access to the recorded data, which would be available only to authorized persons.
In view of the provisions for anonymous data processing, the Minister of Labour issued an administrative provision on March 1 2010 - confirming a previous announcement of June 6 2006 - which confirmed that telephone conversations in the workplace can be recorded, provided that the privacy of the employees in question is protected during the performance of their professional activity.
This significant interpretation of the law will have two main effects.
First, if companies respect the restrictions that are intended to prevent the disclosure of the identities of both call centre employees and customers, they are not obliged to complete a difficult procedure with trade union representatives in order to install monitoring systems.
Second, if it complies with the applicable limitations, a company can be sure of avoiding the possible consequences of infringement, which include punitive damages and criminal penalties.
However, if a company prefers not to anonymize the employees and customers involved - if it can show objective organizational and productive reasons or security interests for retaining the identifying information - it must comply with the conditions of Italian law.
Limits under Italian Law
In addition to systems with the sole aim of monitoring employees, Article 4 of the Statute of Employees and Article 114 of the Privacy Code prohibit remote monitoring systems for other purposes by which employees may potentially be monitored in the performance of their work - termed controllo preterintenzionale - unless such monitoring is justified in the interests of security or is required for organizational and productive reasons.
Where such an exception applies, the employers must consult specific internal trade union representatives. In the absence of an applicable agreement with a trade union, the labour office (Direzione Provinciale del Lavoro) will issue a provision for this purpose.
Failure to follow the procedure for installing monitoring systems is punishable in criminal law under Article 38, of the Statute of Employees, and as a form of anti-union conduct under Article 28, of the Statute of Employees, which requires the offending party to terminate the offending conduct and make good its effects.
Furthermore, personal information acquired by remote monitoring in contravention of the above prohibitions has no evidential value in court.