Can a company make use of private data without prior consent?

After the controversy generated by the AEPD last month, many have not been clear about the use of private data by the company. Is it possible for the employer to make use of the private phone number to create Whatsapp groups without prior consent? 

 

Last January, the Spanish Data Protection Agency (Agencia Española de Protección de Datos, AEPD) decided to file a lawsuit against an employee whose employer had included him in a Whatsapp group without his consent. The AEPD argued that businesses and companies can include their employees' phone numbers in WhatsApp groups without their prior permission, as long as the personal data of the employee shared is kept to a minimum and is related to the purpose of the work. All this unfolded in a controversy that led AEDP to clarify its doctrine. 

 

After the lawsuit was filed, the AEPD argued that "in the field of labour relations, the processing of personal data is legally based, principally, on the execution of the employment contract". It added that in this specific case, the data processed were "the minimum necessary for the organisation of work" and that the company had informed the workers of the purpose of the processing in the Whatsapp groups. However, data protection specialists reproached the agency for not clarifying whether the mobile phone was referred to as private or corporate since if it was private, the AEPD's ruling would have been in contradiction with current labour legislation. 

 

Therefore, the AEPD had to clarify that the company can make use of a private mobile phone, as long as the worker has given his voluntary consent, which he can revoke a posteriori if he wishes to do so. "If the worker does not give it, he or she cannot be sanctioned, nor can he or she be undermined or dismissed".

 

Furthermore, it adds that data such as a home address, e-mail address, telephone number (landline or mobile) or bank account are considered personal, even so, it stresses the need for the employer to have some means of communication with workers for the execution of the employment contract, "and the worker must provide" some means of contact.