IP - 07121-1 / 2020/2260

IP - 07121-1 / 2020/2260
Authority:	IP (Slovenia)
Jurisdiction:	Slovenia
Relevant Law:	Article 4(11) GDPR Article 4(11) GDPR Article 6(1) GDPR
Type:	Advisory Opinion
Outcome:	n/a
Started:
Decided:	16.12.2020
Published:
Fine:	None
Parties:	n/a
National Case Number/Name:	07121-1 / 2020/2260
European Case Law Identifier:	n/a
Appeal:	n/a
Original Language(s):	Slovenian
Original Source:	IP SLOVENIA (in SL)
Initial Contributor:	n/a

The Slovenian DPA issued an opinion on the case of an employee participation in the production of a company's video greeting card under article 6 (1) and 4 (11) of the GDPR.

English Summary

Facts

A company’s director decides to prepare and send by e-mail to the clients a video greeting card. The video should be recorded by the workers at home under mandatory participation. The authority was requested to decide upon the legality of the director’s decision and upon the lawfulness of the processing of the workers’ personal data.

Dispute

Can the employer process employee’s personal data under the legal base of consent of article 6 (1) GDPR?

Holding

The Slovenian DPA finds itself competent of deciding upon the legal basis and the conditions of a lawful processing. Article 6 (1) GDPR provides the conditions of lawful processing. Slovenia’s national legislation provides that employees’ personal data can be processed only if this is determined by law, or if it is necessary for the exercise of rights and obligations arising from the employment relationship or are related to the employment relationship. Due to the inequality of power in the employment relationship and for the protection of the employee, the processing is only possible in exceptional cases and provided that the individual can refuse consent. The consent of article 4 (11) GDPR will suffice only if it is voluntary, specific, informed and unambiguous. The participation at the greeting video is only possible under voluntary consent, which means only if the employee can refuse without negative consequences.

Comment

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English Machine Translation of the Decision

The decision below is a machine translation of the Slovenian original. Please refer to the Slovenian original for more details.

 The Information Commissioner (hereinafter: IP) received your e-mail stating that the Director had decided to prepare a video greeting card for the clients, which would then be sent to the company's clients by e-mail. The video must be recorded by the workers at home, participation is mandatory. You wonder if this is allowed.
 
On the basis of the information you have provided to us, in accordance with Article 58 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data Directive 95/46 / EC (hereinafter the General Data Protection Regulation), point 7 of the first paragraph of Article 49 of the Personal Data Protection Act (Official Gazette of the Republic of Slovenia, No. 94/07-UPB1, hereinafter ZVOP-1) and 2 In accordance with Article of the Information Commissioner Act (Official Gazette of the Republic of Slovenia, No. 113/05, hereinafter ZInfP), we provide our non-binding opinion on your question.
 
We emphasize at the outset that the IP cannot assess specific processing of personal data outside the inspection procedure or other administrative procedure. This means that in issuing an opinion, the IP can only draw attention to the relevant legal basis and the conditions that must be met for certain processing of personal data to be lawful.
 
P first explains that any processing of personal data must have an appropriate and lawful legal basis . These are set out in Article 6 (1) of the General Data Protection Regulation and are as follows:
•	consent (point (a)),
•	the conclusion or performance of a contract (point (b)),
•	law (point (c)),
•	protection of the vital interests of the individual (point (d)),
•	implementation of a public task (point (e) in connection with the fourth paragraph of Article 9 of ZVOP-1),
•	legitimate interests of the operator (point (f)).
 
The field of labor law is specially regulated in special laws, especially in the Employment Relationships Act (Official Gazette of the Republic of Slovenia, No. 21/13, as amended; hereinafter ZDR-1) and in the Labor and Social Security Records Act ( Official Gazette of the Republic of Slovenia, No. 40/06; hereinafter ZEPDSV). Pursuant to the first paragraph of Article 48 of ZDR-1, personal data of employees may be collected, processed, used and transmitted to third parties only if this is determined by this or another law or if it is necessary for the exercise of rights and obligations arising from employment or in employment relationship. The types and content of records in the field of work and social security are determined in the ZEPDSV.
 
This means that the employer may process only those personal data of employees that are necessary for the exercise of rights and obligations arising from the employment relationship or are related to the employment relationship or are determined by the ZEPDSV . The IP clarifies that the personal data of employees, which can be processed by the employer if this is necessary for the exercise of rights and obligations arising from the employment relationship or in connection with the employment relationship, must be assessed on a case-by-case basis. It is up to the employer to explain why the employee needs certain personal data in order to exercise the rights and obligations arising from the employment relationship or in connection with the employment relationship.
 
According to IP, the case you described in your communication most likely does not represent the exercise of rights and obligations arising from the employment relationship or in relation to the employment relationship, which could be the legal basis on which the employer could obtain your recordings for making a video greeting card is given in point (a) of Article 6 (1) of the General Regulation, namely the consent of each employee .
 
Regarding consent  to the processing of personal data of employees, IP points out that consent in employment in relation to the above employment law applies only to those personal data that are not related to the exercise of rights and obligations arising from employment or not related to employment. Due to the pronounced inequality of power of the parties in employment relations or due to the protection of the employee, who is a weaker party in relation to the employer, the legislator regulated this area more strictly. Therefore, the processing of personal data on the basis of consent in this area is only possible in exceptional cases and provided that the individual can indeed refuse consent without any consequences for the employment relationship.
 
Article 4 (11) of the General Regulation provides that the consent of an individual may only be:
1.	voluntary,
2.	specific,
3.	informed and
4.	unambiguous.
 
Voluntary consent means the actual selection and control of the data subject. Consent is thus not valid if the data subject has no real choice if he feels compelled to consent or if he will suffer negative consequences if he does not consent. If the consent is tied to conditions that cannot be negotiated, or if the individual cannot refuse or revoke the transfer of personal data without prejudice, the consent is not given validly, consequently such processing of personal data is without a legal basis, or illegal.
 
The European Data Protection Board (EDPB) in Guideline no. 05/2020 on consent under Regulation 2016/679, adopted on 4 May 2020, highlighted in point 23 a case similar to the one described, in which it describes a case of duly obtained consent (and its refusal) in the case of the dismissal of employees. An example is given of a film crew that will shoot in one part of the office. In such a case, the employer can ask all employees sitting in this part of the office to consent to the recording, as they may appear in the background of the video. Those who do not wish to be filmed should not be penalized in any way for doing so, but are provided with equivalent office conditions in other premises for the duration of the filming. You can read more about this in the guidelines at the following link:   https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_202005_consent_sl.pdf.
 
In view of the above, IP concludes that the participation of employees in the preparation of the company's video greeting card is generally only possible with the consent of the employees. The acquisition can be voluntary, which means that the employee can reject it without suffering any negative consequences.