DLP Insights

Video surveillance: presence of workers and monitoring of their activities essential requirements for breach of prohibition on remote monitoring

Categories: DLP Insights, Practice, News, Publications | Tag: Privacy, cybersecurity

28 Nov 2023

By judgment of 26 September 2023, no. 46188, the Italian Court of Cassation, Third Chamber, ruled on the components necessary for the offence referred to in Article 4 of Italian Law no. 300 of 1970 (the “Workers’ Charter”) stating that the installation of a video surveillance system without the authorisation required by law does not constitute an offence if there are no employees within the company premises and if the system does not imply effective monitoring of work activities.

The facts of the case

The Court of Messina held the owner of a commercial establishment to be criminally liable for the offence referred to in Article 4 of Italian Law no. 300 of 1970 , ordering it to pay a fine of EUR 3,000 for having installed a video surveillance system inside its business premises in the absence, in this case, of authorisation from the Territorial Labour Inspectorate (Ispettorato Territoriale del Lavoro, “ITL”).

The owner appealed against this decision to the Italian Court of Cassation, on the ground, among others, of the breach of Article 4 of the Workers’ Charter arguing that the Court of first instance had not provided information on two central aspects of the offence, namely (i) whether the system was used to record images and (ii) whether employees were employed at the owner’s company.

The applicant stated that the system installed was closed-circuit, did not involve any image recording, and that its company had no staff.

The Italian Court of Cassation’s decision

In ruling on the case, the Italian Court of Cassation took the opportunity to briefly summarise the rules and principles in force regarding video surveillance and remote monitoring of workers.

First, it pointed out that the presence of employees in the place filmed by the video surveillance systems is “an essential requirement for the offence in dispute”, since the provision referred to in Article 4, paragraph 1, of the Workers’ Charter is specifically aimed at regulating the employer’s use of audio-visual systems – and other tools which may also enable remote monitoring – “of workers’ activities”.

Secondly, the Italian Court of Cassation noted that there is no breach of the legislation if a system, although installed in the absence of an agreement with the legitimate trade union representatives or an authorisation from the ITL, “is strictly for the purpose of protection of the company’s assets”, provided that (i) “its use does not imply significant monitoring of the ordinary performance of employeeswork activities” or (ii) “necessarily remains “confidential” to enable the investigation of serious unlawful conduct”.

However, the decision of the court of first instance did not clarify whether the conditions referred to in paragraphs (i) and (ii) above were fulfilled in the present case. Consequently, an assessment of the merits of those conditions required the Court to set aside the judgment and refer the judgment under appeal back to the same Court sitting in a different composition.

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