05/22/2024 – 7:05
The Superior Labor Court (TST) revoked, by majority, an injunction that prevented Banco Santander from using geolocation evidence to prove the working hours of a bank employee in Estância Velha (RS).
The decision generated debate about the use of geolocation services by Justice, its validity as digital evidence in processes and a possible violation of citizens’ privacy.
How it works
To access the location, the telephone number, telephone company and addresses of Instagram and Facebook accounts, for example, may be requested. Then, the judge orders these companies to pass on information about the complainant’s location on the days and times specified in the process.
“In short, the strategy is to ask the judge for authorization to send letters to the companies responsible for these technologies so that they can deliver data compiled to confirm whether the worker was at the company’s headquarters on the alleged days and times”, explains labor lawyer Rafaela Sionek.
Understand the TST decision
The case judged by the TST began in 2019, when a bank employee who worked for 33 years at Santander filed a lawsuit asking for payment of overtime.
When defending itself, the bank said that the employee held a management position and, therefore, was not subject to working hours control. The company then asked the first degree court to produce evidence of his geolocation at the times he claimed to work those hours.
The court ordered the employee to provide his telephone number and device identification to inform the telephone operators. However, he appealed the decision, alleging a violation of his right to privacy, and highlighted that weekend or holiday hours were not protected in the determination.
By majority vote, Subsection II Specialized in Individual Disputes (SDI-2) of the Superior Labor Court revoked an injunction that prevented Banco Santander SA from using digital proof of geolocation. The evidence will be limited to the hours claimed by the worker, and the process will remain confidential.
Is it a violation of privacy?
According to the TST’s decision, the evidence is adequate, necessary and proportionate and does not violate the telematic and communications secrecy guaranteed in the Constitution. According to the collegiate, the production of digital evidence is supported by various legal systems, both international courts and Brazilian laws, such as the General Law for the Protection of Personal Data, the Law on Access to Information and the Marco Civil da Internet, which allow access to personal data and information to defend interests in court.
The production of digital evidence is already used in many cases in labor courts, explains Sionek. For her, the use of geolocation services cannot be considered an invasion of privacy if it is restricted only to the days and times on which the employee claimed to be providing services. “Those who defend the breach of privacy and intimacy understand that geolocation should be used in a subsidiary way and not as a main means of evidence”, she says.
The request for overtime usually has as an important factor the location where the employee was at a given period, and, therefore, “geolocation can offer this information in an objective way”, adds the specialist.
Could other evidence be used?
Traditional evidence in processes of this type is testimonial, such as other bank employees who can tell whether or not the employee was working extra time, or documentary evidence, such as emails or messages sent via company communication services.
“It is worth remembering that digital evidence is a recent position in the Labor Judiciary for overtime requests, but it does not exclude traditional means of producing evidence”, highlights Sionek.
For the case that won the trial at the TST, the geolocation proof must be secondary, and not main. In this case, it was admitted as the first procedural evidence, there were other, less invasive means of proving the employee’s allegations. In the opinion of the judges who voted against, the advantages of the measure to prove the journey do not outweigh its disadvantages.
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