Resources
- Identity Use Cases & Scenarios.
- FIDIS Deliverables.
- Identity of Identity.
- Interoperability.
- Profiling.
- Forensic Implications.
- HighTechID.
- Privacy and legal-social content.
- Mobility and Identity.
- D11.1: Mobility and Identity.
- D11.2: Mobility and LBS.
- D11.3: Economic aspects of mobility and identity.
- D11.4: Workshop on Mobility and Identity.
- D11.5: The legal framework for location-based services in Europe.
- D11.12: Mobile Marketing in the Perspective of Identity, Privacy and Transparency.
- Other.
- IDIS Journal.
- FIDIS Interactive.
- Press & Events.
- In-House Journal.
- Booklets
- Identity in a Networked World.
- Identity R/Evolution.
D11.6: Survey on Mobile Identity
The deliverable in hand provides the results of an explorative survey on the
control model for identity related data in location-based services (LBS)
presented in FIDIS deliverable D11.2.
The survey was performed to explore the influence of LBS characteristics (pull
vs. push based, indirect vs. direct profile creation) on the perceived amount of
control participants have about the disclosure of their identity.
Four scenarios, each reflected a different aspect of the control model, have been
designed and tested.
Because of the social implications of some location data processing, like the monitoring of employees and children, two law proposals have been passed in order to address to these concerns. Two specific examples will be discussed in this chapter, both with high-growth market expectations: the use of location devices by employers for monitoring of the activity of their employees (section 5.4.1) and the development of C2C (Client to Client) Location Based Services, based on the localisation of a third party’s mobile phone (section 5.4.2).
When the processing is realised in the context of a labour relationship, we should refer not only to the Data Protection and Electronic Communications Acts but also to the provisions contained in Labour Law. These relationships are characterised by an imbalance in the power of negotiation of the parties. In Belgium, negotiation and consultation instruments have been used in order to mitigate the consequences of this non-egalitarian relationship (Privacy Commission, Opinion 10/2000).
Nowadays, the employer is getting access to highly intrusive means of surveillance of workers. However, despite the fact that the employer has the power to use communication means and to control the effective implementation and respect by the employees of these rules, he cannot invade the fundamental rights of the employees. The electronic surveillance of workers has been a point of debate for several years in Belgium and a specific collective labour agreement has been set up between trade unions and companies representatives in order to regulate the use of means of control of the data relative to electronic communications networks in 2002. This agreement was meant to define the limits the employer cannot cross without invading the worker’s privacy when controlling the activities of the latter in the field of network communications. It particularly focuses on information relative to emails, browsing and chats, but also on data transmitted by mobile phones.
The processing of location data for purposes of control over the activities of the worker and improvement of the work organisation motivated the presentation of a Law proposal that is currently discussed at the Senate. The law proposal aims at the setting up of a new Collective Labour Agreement relative to the control of employees with the purpose of controlling the professional use of companies’ vehicles and the correct application of the conditions of work.
Until the final approval of the law and the setting up of a new agreement, several laws apply to such data processing:
The Data Protection Act regulates the obligations and rights of the controller (the employer) and the data subjects (the employees),
The Electronic Communications Act regulates the obligations and rights of the Operator and of the subscriber of the service (the employer) and the users (the employees),
The Collective Labour Agreements nº 13, 39 and 81 establish the general principles that should be respected in case of electronic surveillance of workers, even if it does not specifically refer to location data processing. A reference shall be also made at this point to the Opinion of the Privacy Commission on the Law Proposal relative to the surveillance of workers by monitoring systems based on GPS systems in professional vehicles according to the provisions of the Data Protection Act, as it contains the general principles, which should apply to such processing in the field of data protection.
Data Protection Act
The employer is the natural or legal person who determines the purposes and means of the processing of personal data, and thus is considered as controller of the processing. He has the obligation of obtaining the prior consent of the worker and to provide him with the relevant information as stated by Art. 1.4 of the Data Protection Act. It should be mentioned that the consent of the trade unions through a General Labour Agreement can not be a substitute for the individual, free, specific and informed consent of the worker to the processing.
When the processing is intended for surveillance purposes, the information provided to the workers should contain the information stated in Art. 9 of the Data Protection Act (name and address of the controller and, if such is the case, of his representative; the purposes of the processing; recipients or categories of recipients of the data; the existence of the right of access to and the right to rectify the personal data concerning him), how the control is realised, the nature of abuse which can lead to a control, the duration of the control and the procedure followed after the control (Art.9 Collective Labour Agreement n°81).
The processing should have defined, explicit and legitimate purposes, i.e., it should be linked and justified by the activity of the employer. In the context of the control exercised by the employer on the working tools, the Privacy Commission reminded in its Opinion 10/2000 that the definition of what is allowed or not in the workspace will depend on several factors, as the work context, the nature of the responsibilities of the employer and the employee, and the nature of the work in itself. This issue should be treated on a case-by-case basis into each company. This statement will be equally valid for the processing of location data by the employer.
For processing of location data with purpose of control of workers, the Privacy Commission recommended that the Labour Convention defines the purposes of the surveillance, mentioning some criteria as for instance the security of the worker, the protection of the vehicle, to the existence of professional needs regarding transport and logistic or the control the employees’ work.
The processing should also be proportionate. A proportionality test should be carried out in order to balance the interest of the employer and the respect of fundamental rights of the employees. Art. 6 of the Labour Collective Convention nº81 set up a general principle, according to which the control of the information flow in the communication network should not imply an invasion to the privacy of the worker. The processing of location data of the worker will not only risk violating the worker’s privacy but also his freedom of movement in an anonymous way. Therefore, the employer should ensure that the system does not constitute a disproportionate intrusion into these two fundamental rights of the worker. This means that he cannot implement such a system with the sole purpose to control the movements of the employer. Moreover, the data minimisation principle compels the controller to process only adequate, relevant and not excessive personal data regarding the purposes of the processing. The Privacy Commission considers that in case the system is implemented for the control of the tasks, such control could only be justified occasionally and on the basis of hints, which indicate the abuse from some workers. A permanent control and processing should be considered as disproportionate and it reminds that the best solution would be to allow the worker to activate and deactivate the system according to the needs of the localisation, as well as outside working hours.
Moreover, the controller will have to ensure the confidentiality of the processing and set up the required security measures, as well as attending the request of access, modification and cancellation formulated by the data subject (the worker). The worker has a right to object to the processing whenever he has serious and legitimate reasons (Art. 12 of the Data Protection Act).
Electronic Communications Act
The Electronic Communications Act provides that the Mobile Operators shall obtain the prior consent of the subscriber to the location based service (the employer) and when appropriate of the user (the worker). Moreover, as mentioned above, the Telecommunication Operator should enable a system allowing the easy deactivation of the processing, at any moment and without charge. The approval of the proposal of law modification would mean that the Operator will have to obtain, in any case, the consent of both the employer and the worker prior to the activation of the system.
Labour Law
As highlighted by the Privacy Commission in its Opinion nº10/2000, the labour legislation as a whole established a general principle according to which employers should inform and consult their employees or their representative prior to the introduction or modification of automatic systems with purposes of gathering and using workers’ personal data. This principle also applies to the introduction or modification of technical processes intended to control workers’ movements or productivity.
Article 2 §1 of Labour Convention No. 39 of 13 of December 1983, relative to the information and consultation on the social consequences of the introduction of new technologies, states that when the employer decides to invest in a new technology, which has important collective consequences regarding the employment, the working organisation or the working conditions, he has to provide written information on the nature of the new technology, the factors which justified its introduction and of the social consequences and to lead a consultation with workers’ representatives on such social consequences, at the latest three months after the implementation of this new technology.
Finally, Article 6 of the Law of 8 April 1965 on Work Regulations states that these regulations have to indicate the right and obligations of surveillance staff. This article has constituted the legal basis of Labour Convention nº68 relative to the protection of workers’ privacy regarding video surveillance in the workspace.
The Collective Labour Agreement nº81 applies to communication data in a network, understood in a broad meaning and irrespective of the support by which they are transmitted and received by a worker in the frame of a work relationship. It follows that the surveillance through a monitoring system linked to a GPS navigation system in a professional vehicle used by employees can only be implemented after the agreement of ad hoc joint commissions, the Public services common committee or competent bodies.
GeoMobile is a service offered in Belgium by the company ‘NETiKA Internet & Mobile Solutions’. This service enables the localisation of vehicles or employees. The localisation can take place either via GPS (through a satellite network) or via cell phones (as a Location Based Service). The latter service is currently offered in co-operation with two mobile operators, Proximus and Mobistar.
The localisation can be visualised in real time on a card that is shown on the screen of the employer’s computer and the system allows the simultaneous localisation of more than one vehicle or employee. The service is equipped with a multitude of extra functions, such as the calculation of the estimated time till reaching the target address, grouping of the employees and the interactive communication between the employer and the employee via SMS or e-mail.
GeoMobile compels the person who uses its services to inform the mobile workers about the localisation system and its purposes and obtain their prior consent to be localised. The two should also agree on the hours during which the localisation is going to take place, before the actual activation of the service. For the cell phone service the employee has to send an SMS to the operator and, in both cases, he has to sign a form, a model of which is provided on the Website.
For the provision of the service, both via GPS and via cell phone, location data of the employee are used and therefore the consent of the person who is going to be localised is needed. It is important to mention that the employer is the one who has to give to the employee the necessary information about the service.
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