The proliferation of remote work, combined with the development of monitoring technologies, has led employers around the world to implement various, sometimes technologically advanced methods to check employees’ performance and commitment to their work. In this area, IT solutions and programs commonly called “bossware” are gaining popularity.
In practice, bossware can include a variety of solutions and technologies, such as:
- Keyloggers monitoring the employee’s use of the keyboard on a company computer
- Downloading and analysis of screenshots from the employee’s business device
- Tracking mouse movements
- Constant or periodic observation of employees using the camera (e.g. eye movement) or microphone on a business device
- Tracking the employee’s online activity
- Monitoring the use of business email, calendar and business messaging
- Analysis of the performance of applications and programs run by the employee.
A specific feature of bossware solutions is the frequent use of automated analysis to flag employees whose productivity, commitment or manner of work deviates from the employer’s expected norm, without their superiors’ involvement.
Polish employers are also reaching for bossware. In this regard, we describe below what they should take under consideration in light of Polish labour law and data protection law.
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Entities transferring personal data outside the European Economic Area on the basis of standard contractual clauses that are no longer in force (where the transfer began before 27 September 2021) should conclude agreements based on new clauses by 27 December 2022.
Under the General Data Protection Regulation, the transfer of personal data to “third countries” (outside the European Economic Area) is only permitted if the conditions set forth in the GDPR are met, i.e. generally when:
Continue reading “Standard contractual clauses need to be updated by 27 December 2022”
- The transfer is made to a country which the European Commission has determined provides an adequate degree of protection (i.e. it has issued an adequacy decision—decisions issued so far are available on the European Commission website)
- If there is no adequacy decision, then adequate safeguards are provided, including in the form of conclusion of an agreement based on standard contractual clauses between the entities involved in the transfer
- If there is no adequacy decision or adequate safeguards, then one of the special circumstances specified in the GDPR applies.
When seeking inspiration for the future legal status of data, it is worth taking a closer look at how the right to personal data has been shaped. In particular, we could consider whether it is a property right and whether the current legal framework for the right to personal data corresponds to reality and meets our needs.
The attempt to define an absolute right to personal data is mainly driven by Art. 1(2) of the EU’s General Data Protection Regulation, which states that one of the objectives of the regulation is to protect the “right to the protection of personal data.” The right to protection of personal data is also enshrined in the Charter of Fundamental Rights of the European Union and the Treaty on the Functioning of the European Union.
The source of this right is found in European legislation. For this reason, an attempt to determine the substance of the right to data protection is difficult, as we cannot simply and directly refer to structures known from the different legal systems of the member states.
The essence of the right to data protection seems to be indicated in recital 7 of the GDPR preamble, which states, “Natural persons should have control of their own personal data.” Thus, the right to protection of personal data is primarily intended to give data subjects control over their data. The specific content of this right is defined by the protective instruments provided for in the GDPR. Among other things, these instruments consist of a guaranteed right to information about processed data, the right of control, but also the right to object to data processing. Many of these rights are similar to the bundle of rights also found in classical property law structures. However, important differences also exist.
Continue reading “What is the right to personal data?”