matter under its articles 45 (data protection), 46 (distance surveillance instruments),
47 (private and family life), and 49–51 (electronic mail).
114 It covers any data
concerning information requested by the employer to a worker or to an employment
candidate or collected in any other form—in the case of sensitive data—and also
information gathered by distance surveillance instruments and electronic mail.
According to relevant dispositions, specifically article 45 of the Labour Code, only
information “directly and necessarily” linked with a certain position or with the
evaluation of professional skills of the worker is permitted with the specific aim of
determining the capacity of a person to perform a job.
The gathering of sensitive data related to political and philosophical convictions,
union or party membership, religious faith, racial or ethnic origin, health, sex life and
genetic data, family and private life, is, in general, interdicted (article 45 (2)).
Workers’ information rights about their own personal files, the ban on transfer to
other entities without prior consent and to request the correction and suppression of
personal, familiar or professional data, even when gathered with previous consent,
are also recognised (article 47).
The Labour Code forbids, under article 46, the use of technological related
equipment that permits surveillance from a distance, such as closed circuit television
(CCTV) cameras, by employers with the objective of monitoring job performance by
the worker, but they can use them in situations necessary to protect and secure
persons and property or in case the particular nature of certain specific professional
careers justifies it; there is an obligation to inform the worker of the existence and
purposes of such means. In a recent case the District Court of Praia had the
opportunity of ruling on the legality of the use of CCTV Cameras to collect evidence
for disciplinary procedures aimed at firing a worker, but instead favoured dismissal
based on the non-availability of the recorded data for the plaintiff’s—the worker’s—
defence.
115
With regard to the nature of the information (public or private information) shared
by employees through social networks and on the possibility of using it as evidence
within disciplinary proceedings there are no specific rules in the Cape Verdean
Legislation, nor have the Courts provided specific guidance on this particular matter,
but it is not clear that privacy expectations were present in all those situations. Under
the Labour Code, the use of electronic means is covered by general norms on the use
of employer’s equipment to access internet and electronic mail. The main rule
establishes that the employer has the power to decide if and under which conditions
an employee can have access to those electronic means (article 49), but if authorised
the employers have no power to access a labourer’s electronic mail or other forms of
Serie, n. 22, Sup., 16.06.2010, pp. 2–4, and by the Legislative-Decree No 1/2016, of 2 February,
corrected version published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 22, Sup.,
16.06.2016, pp. 271–284.
114 For general comments, Almeida (2010), pp. 382–399.
115 M.A.C. v. Banco Angolano de Investimentos de Cabo Verde (BAI-CV), District Court of Praia,
Judge Sebastião de Pina, Ruling of 21 April 2017 (not-published; on file with author).
Data Protection in the Internet: Cape Verde’s National Report
97
47 (private and family life), and 49–51 (electronic mail).
114 It covers any data
concerning information requested by the employer to a worker or to an employment
candidate or collected in any other form—in the case of sensitive data—and also
information gathered by distance surveillance instruments and electronic mail.
According to relevant dispositions, specifically article 45 of the Labour Code, only
information “directly and necessarily” linked with a certain position or with the
evaluation of professional skills of the worker is permitted with the specific aim of
determining the capacity of a person to perform a job.
The gathering of sensitive data related to political and philosophical convictions,
union or party membership, religious faith, racial or ethnic origin, health, sex life and
genetic data, family and private life, is, in general, interdicted (article 45 (2)).
Workers’ information rights about their own personal files, the ban on transfer to
other entities without prior consent and to request the correction and suppression of
personal, familiar or professional data, even when gathered with previous consent,
are also recognised (article 47).
The Labour Code forbids, under article 46, the use of technological related
equipment that permits surveillance from a distance, such as closed circuit television
(CCTV) cameras, by employers with the objective of monitoring job performance by
the worker, but they can use them in situations necessary to protect and secure
persons and property or in case the particular nature of certain specific professional
careers justifies it; there is an obligation to inform the worker of the existence and
purposes of such means. In a recent case the District Court of Praia had the
opportunity of ruling on the legality of the use of CCTV Cameras to collect evidence
for disciplinary procedures aimed at firing a worker, but instead favoured dismissal
based on the non-availability of the recorded data for the plaintiff’s—the worker’s—
defence.
115
With regard to the nature of the information (public or private information) shared
by employees through social networks and on the possibility of using it as evidence
within disciplinary proceedings there are no specific rules in the Cape Verdean
Legislation, nor have the Courts provided specific guidance on this particular matter,
but it is not clear that privacy expectations were present in all those situations. Under
the Labour Code, the use of electronic means is covered by general norms on the use
of employer’s equipment to access internet and electronic mail. The main rule
establishes that the employer has the power to decide if and under which conditions
an employee can have access to those electronic means (article 49), but if authorised
the employers have no power to access a labourer’s electronic mail or other forms of
Serie, n. 22, Sup., 16.06.2010, pp. 2–4, and by the Legislative-Decree No 1/2016, of 2 February,
corrected version published by the Republic’s Official Gazette [Boletim Oficial], I Serie, n. 22, Sup.,
16.06.2016, pp. 271–284.
114 For general comments, Almeida (2010), pp. 382–399.
115 M.A.C. v. Banco Angolano de Investimentos de Cabo Verde (BAI-CV), District Court of Praia,
Judge Sebastião de Pina, Ruling of 21 April 2017 (not-published; on file with author).
Data Protection in the Internet: Cape Verde’s National Report
97