Anställdas integritetsskydd vid digital kontroll och övervakning – Enligt EKMR, GDPR och svensk arbetsrättslig reglering

Sammanfattning: The purpose with this essay is to examine the privacy protection of private employees against digital monitoring and surveillance due to the increased significance of human rights in horizontal relations and the digital development. Digital monitoring and surveillance refer to monitoring of the use of and/or communication by means of computers. The following research question is answered in the essay: when is it permissible to digitally monitor and surveil employees? To answer the question, an analysis of GDPR, ECHR and Swedish labour law regulation is made. The method used to answer the question has been a legal dogmatic method. A theory that Swedish labour law is a polycentric field has also been used. According to the ECHR, states have in certain situations a positive obligation to protect the right to respect for private life in employment relationships. ECtHR has drawn up six criteria, which Swedish courts will have to consider when dealing with digital surveillance. GDPR provides the employer with an extensive scope to process employees’ data digitally. The permissibility will basically be restricted if the processing does not at the outset have a legitimate purpose, is necessary and proportionate. According to Swedish labour law, digital surveillance will likely be within the employer’s right to direct and allocate work. However, the legal basis for surveillance of communications is more uncertain. Regardless of legal basis, the permissibility of these measures will likely be tested against the legal principle of “good labour practice”. The Swedish labour law rules governing dismissals might in some cases act as a restriction. The answer to the posed question is briefly that the employer is handed many legal possibilities to be permitted to digitally monitor and surveil workers. Mainly, the lawfulness will depend on the weight of the employer’s reasons and interest, the necessity of the measure, the proportionality in contrast to the interest of the employees, and information about the measure beforehand. Monitoring of the content of communication will in most cases not be allowed. If monitoring is of less concern to the employees’ private life, it will more likely be permitted. However, if in general more intrusive and less of a necessity, even monitoring not concerning the private life might be seen as illegal. Employer policies will neither be able to completely ban private use. Another important finding is that the social partners will most likely have a restricted scope to regulate these types of questions. Lastly, there are some uncertainties regarding the interplay between the regulations that the legislator should solve. These are discussed in the ending chapter of the essay.