How can employers implement ongoing monitoring while minimizing the risk of legal claims?
Answering this question requires drawing a clear line between an employer’s right to monitor the use of the digital tools it provides to its employees and the employees’ right to privacy. This boundary lies between two legally protected interests and continues to evolve over time.
Employee privacy is protected by law and by international treaties with constitutional status to which Argentina is a party, particularly the right to the privacy of correspondence. Therefore, monitoring employees’ digital activity cannot be based on an intent to engage in corporate surveillance, but rather on a legitimate interest in preventing unlawful conduct carried out through company-provided tools and in preserving electronic evidence necessary to prove such conduct.
In principle, employers are entitled to exercise their right of control under Argentine labor law, provided that such control is carried out within legal limits and in good faith. However, asserting this right is not enough on its own: it must also withstand judicial scrutiny.
To do so, it is advisable to assess each situation individually and apply a proportionality test, identifying the elements that support the legality of the monitoring measures adopted.
A key starting point is the existence of a documented and expressly accepted policy governing the use of electronic tools and the ownership of their content. This policy should be developed through an interdisciplinary approach, combining legal expertise with technical knowledge in information technology.
When it comes to monitoring emails or messaging platforms, acting in good faith is essential. Argentine labor law requires employers to inform all employees in advance about any monitoring measures before implementing them. This notice must be regular and periodic. Case law has shown that it is not sufficient to have employees sign a code or policy once and leave it unchanged for years. Awareness must be updated over time. We therefore recommend issuing electronic communications with confirmation of receipt.
Assessing the effectiveness and legality of monitoring tools requires a careful analysis grounded in a deep understanding of both the applicable technology and the legal framework. Through our forensic technology team—composed of senior technologists, data analysis experts, cybersecurity and privacy specialists, lawyers, and investigators—we have achieved a strong track record in this field.
In short, we help distinguish lawful monitoring from unlawful practices and recommend improvements to maximize evidentiary value, thereby avoiding unnecessary costs and procedural nullities.