3. www.tusconsultoreslegales.com [email_address] PERSONAL DATA PROTECTION: CULPA IN VIGILANDO (failure to exercise vigilance) Information at no cost 1. CURRENT SITUATION 2. PREMISES TO BE TAKEN INTO ACCOUNT 3. WHAT DOES DUTY OF CONTROL MEAN AND WHAT IS ITS SCOPE? 4. BEHAVIOURS WHICH MAY AFFECT THE COMPANY'S REPUTATION 5. ACTIONS WHICH MAY CONSTITUTE A CRIME 6. SCOPE OF THE CRIMINAL LIABILITY OF LEGAL PERSONS 7- INTERNAL CORPORATE POLICY 8. CONCLUSIONS
4. www.tusconsultoreslegales.com [email_address] 1. CURRENT SITUATION The criminal liability of companies is established in the criminal code What employee behaviours related to social networks are appropriate? In a situation in which it is necessary to transfer information on products and services, it is necessary to have provided instructions to the appropriate people In a situation in which there is no control over connections to social networks, thus reducing the company's productivity, it is perhaps appropriate to establish an internal corporate policy which includes behaviour guidelines What happens if these guidelines have not been established, or when they have been established, there is a situation in which it is considered that the legal person has criminal liability? What crimes could be committed without the employees being aware?
5. www.tusconsultoreslegales.com [email_address] 2. PREMISES TO BE TAKEN INTO ACCOUNT PREMISES: 1- Behaviours which may damage the company's reputation 2- It is necessary to know the Types of crime 3- Where the crime might appear 4- How to establish effective and legal control measures 5- Need to train the management team in the legal, technical and business risks which involved in not having exercised proper duty of control over employees 6- Need for training/awareness building for employees in their professional conduct
6. www.tusconsultoreslegales.com [email_address] 3. WHAT DOES DUTY OF CONTROL MEAN AND WHAT IS ITS SCOPE? Article 20.3 of the Workers' Statute establishes: The Organic Law on Personal Data Protection establishes the obligation to set up a series of technical and organisational measures aimed at protecting personal data In turn, there is a mechanism, referred to as Internal Corporate Policy which may be used by the company to establish and determine what behaviours are admissible by the company with regard to its employees.
7. www.tusconsultoreslegales.com [email_address] 3. WHAT DOES DUTY OF CONTROL MEAN AND WHAT IS ITS SCOPE? It is precisely the Internal Corporate Policy which will make it possible to establish parameters for the employer to exercise its rights, which are granted by article 20 of the Workers' Statute Furthermore, there are tools which allow the company to control external communications, establishing valid parameters or permission for accessing the Internet Scope of the duty of control: The duty of control must not infringe the worker's privacy. Therefore, it is necessary to establish measures that make it possible to implement the level of control in order to manage the risks regarding the criminal liability of the legal person, but which, in turn, make it possible to guarantee the workers' privacy rights. It is necessary to establish valid and legal strategies for technical and organisational control.
8. www.tusconsultoreslegales.com [email_address] 4. BEHAVIOURS WHICH MAY AFFECT THE COMPANY'S REPUTATION Description: 1- Infringement of the privacy of other users: Personal data protection 2- Fall in productivity as a result of spending work time connected to social networks for personal reasons 3- Being a victim of identity theft 4- Being subject to negative comments by employees, which affect the company's reputation
9. www.tusconsultoreslegales.com [email_address] 5. ACTIONS WHICH MAY CONSTITUTE A CRIME Possible actions which may constitute a crime, and which may therefore lead to the criminal liability of the legal person: 1- Infringement of intellectual property rights 2- Revealing sensitive information which may affect the confidentiality of the projects: Actions which should have been subject to employee training 3- Acts of unfair competition 4- Failure to comply with the duty of confidentiality which should have been established
10. www.tusconsultoreslegales.com [email_address] 6. SCOPE OF THE CRIMINAL LIABILITY OF LEGAL PERSONS Criminal implication in committing a crime by the company can occur when: LEGAL REPRESENTATIVES OR DIRECTORS HAVE NOT STIPULATED THE APPROPRIATE CONTROL MEASURES AND, AS A RESULT, THE ALLEGED CRIMES HAVE BEEN CARRIED OUT USING COMPANY RESOURCES
11. www.tusconsultoreslegales.com [email_address] 7- INTERNAL CORPORATE POLICY The Internal Corporate Policy can be used as an instrument to establish limits and controls on the use of the company's internal and external means of communication. This section may have an example document which contains a series of measures which need to be taken into account. However, 1- If the company has a Company Committee or Staff Delegates, it would be recommendable to establish a joint policy 2- If the company does not choose the first option, IT IS NECESSARY TO ESTABLISH A CONTROL STRATEGY WHICH IS LEGAL AND WHICH IS INTEGRATED INTO A SECURITY POLICY APPLICABLE GLOBALLY
12. www.tusconsultoreslegales.com [email_address] 8. CONCLUSIONS And therefore it is necessary to define together with the company's management team: 1- How problems should be anticipated 2- What security policy should be adopted 3- Establishing online reputation surveillance measures 4- What social alternatives exist for the company's internal and external communication 5- Management of the Crisis Cabinet in order to give a positive response to the online reputation .
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