On 6 December 2018, the new Organic Law on Data Protection (LOPD) was published in the Official State Gazette (BOE), adapting Spanish law to the model established by the General Data Protection Regulation. But there are more legal developments in Digital Law that you should know about.
Among the most significant developments is the recognition of what are known as Digital Rights. Andrés Ruiz, a lawyer in the Privacy and New Technologies area of Metricson, a legal services firm specialising in technology businesses, tells us which are the most relevant digital rights recently recognised by the legislator and the controversies that some of them may give rise to.
1.-RIGHT TO DIGITAL DISCONNECTION IN THE WORKPLACE (ARTICLE 88 LOPD)
The new text has incorporated, for the first time in Spain, workers’ right to digital disconnection. The new LOPD establishes that respect for rest time, leave and holidays, and the personal and family privacy of workers outside working hours will be guaranteed. The reconciliation of work activity with personal and family life will also be promoted.
Employers will draw up internal policies detailing the exercise of the right to disconnection, promoting the responsible use of technological tools and avoiding the risk of computer fatigue among workers, with special attention to teleworking.
2.-RIGHT TO PRIVACY IN THE WORKPLACE
Workers will have the right to the protection of their privacy with regard to:
-Digital devices. The employer may only access their contents for the purpose of monitoring compliance with work obligations (Article 87 LOPD)
-Video surveillance and sound recording devices in the workplace. The employer must provide prior, express and concise information about these measures. (Article 89 LOPD)
-Geolocation systems. The employer must inform employees expressly, clearly and unequivocally about the existence and characteristics of these devices. (Article 90 LOPD).
3.-DIGITAL RIGHTS IN COLLECTIVE BARGAINING (ARTICLE 91 LOPD)
Collective agreements are empowered to establish additional guarantees of rights and freedoms in the digital sphere.
4.-RIGHT TO NET NEUTRALITY (ARTICLE 80 LOPD)
Internet service providers must be transparent in their offering of services, avoiding any discrimination against citizens on technical or economic grounds.
5.-RIGHT OF UNIVERSAL ACCESS TO THE INTERNET (ARTICLE 81 LOPD)
The right of the entire population to access the Internet in a non-discriminatory manner is guaranteed, regardless of each individual’s personal, social, economic or geographical circumstances.
6.-RIGHT TO DIGITAL SECURITY (ARTICLE 82 LOPD)
The right of users to security in the communications they carry out over the Internet.
7.-RIGHT OF RECTIFICATION ON THE INTERNET (ARTICLE 85 LOPD)
Users who disseminate content that infringes honour and privacy will be enabled to issue rectifications in accordance with the requirements of a specific law regulating the right of rectification.
Digital media outlets may be obliged to publish clarifications when the original news items do not reflect an individual’s current situation.
8.-RIGHT TO THE UPDATING OF INFORMATION IN DIGITAL MEDIA (ARTICLE 86 LOPD)
Users may request that digital media outlets include a visible “update notice” alongside news items concerning them if those original news items do not reflect their current situation owing to circumstances arising after publication.
This right will operate especially with regard to information relating to police or judicial proceedings in which the person concerned has been favoured as a result of subsequent judicial decisions.
9.-RIGHT TO BE FORGOTTEN IN INTERNET SEARCHES, SOCIAL NETWORK SERVICES AND EQUIVALENTS. (ARTICLES 93 AND 94 LOPD)
This is the right to have Internet search engines (such as Google) remove the results that appear from a search of a person’s name, when they contain inaccurate, inadequate, irrelevant or outdated data.
This right will also operate if the person concerned invokes personal circumstances under which their rights prevail over the maintenance of the links.
This right will not prevent access to the published information through the use of search criteria other than the person’s name.
Everyone will have the right to have deleted (i) the data they provided to social networks, and (ii) data concerning them provided by third parties to social networks, under certain circumstances.
10.-RIGHT TO PORTABILITY (ARTICLE 95 LOPD)
Through this right, users can receive and transmit the content they have provided to Internet service providers. In addition, they have the right to have these providers transmit it directly to other providers, if technically possible.
11.-RIGHT TO DIGITAL EDUCATION (ARTICLE 83 LOPD)
Under this right, the education system will guarantee the full integration of pupils into the digital society. Education authorities, among other obligations, must include “digital competence” in the design of the block of freely configurable subjects and will promote teacher training in this area.
12.-RIGHT TO THE PROTECTION OF MINORS ON THE INTERNET (ARTICLES 84, 92 AND 97.2 LOPD)
In addition, the LOPD seeks to guarantee the protection of the best interests of the minor and their fundamental rights. The new text establishes actions to:
-Promote the balanced and responsible use of digital devices, social networks and Internet services through training and awareness-raising among minors.
-Protect minors from the use or dissemination of images or information on social networks and the Internet that may involve unlawful interference with their fundamental rights
-Guarantee the protection of their personal data in the publication or dissemination of their data.
13.-RIGHT TO A DIGITAL WILL
Persons connected to a deceased person and their heirs may approach Internet service providers to access content relating to the deceased and give instructions on its use, destination or deletion; this is provided the deceased had not expressly prohibited it.
Notwithstanding the deceased’s prohibition, heirs may access content that may form part of the estate.
The executor of the will or a person designated by the deceased may request access to the content in order to comply with the instructions received.
Entitled persons may decide on the maintenance or deletion of the personal profiles of deceased persons on social networks or equivalent services. The parties responsible for these services must proceed to delete the profile when requested to do so without delay.
originally published by the Emprendedores editorial team
