In an article published on ilsussidiario.net on 12.11.2022, lawyer Angelo Chiello takes stock of case law on the subject of recording conversations in the workplace.
In brief, the Supreme Court has repeatedly affirmed that “the recording of conversations between those present without the knowledge of the conversants configures a serious violation of the right to privacy with the consequent legitimacy of the dismissal intimated” (Cass. No. 11999/2018; Cass. No. 16629/2016; Cass. No. 26143/2013). However, privacy legislation allows the data subject’s consent to be disregarded when the data processing is necessary to assert or defend a right, provided that the data are processed exclusively for such purposes and for the period strictly necessary for their pursuit (Cass. September 20, 2013, No. 21612). Therefore, the use of recordings of conversations between the employee and colleagues in the workplace for defensive purposes does not require the consent of those present, due to the unavoidable need to balance the opposing instances of confidentiality on the one hand and judicial protection of the right on the other: with the consequence of the legitimacy (idest: unsuitability for the integration of a disciplinary offence) of the conduct of the worker who has made such recordings to protect his or her position within the company and to pre-establish a means of proof, the same responding, if pertinent to the defensive thesis and not exceeding its purposes, to the needs consequent to the legitimate exercise of a right (Cass. Nov. 2, 2021, No. 31204; Cass. Sept. 29, 2022, No. 28398; Cass. May 10, 2018, No. 11322).