This is an unquestionable reality. Companies and public administrations have found it necessary to move towards digitalisation, incorporating new technologies in their daily activities without knowing, sometimes with the necessary certainty, how to guarantee respect for the fundamental rights inherent to all people, who are increasingly exposed, throughout this process.
For this reason, preventive advice based on a thorough knowledge of the case law of the European Court of Human Rights, the Court of Justice of the European Union and the Spanish Constitutional Court, which is constantly being updated, is no longer a useful resource, but a necessary and indispensable one. Moreover, legislation on rights and digitisation, sometimes belated, is increasingly abundant, coming from different areas of regulation.
The protection of fundamental rights is particularly complex due to its marked cross-cutting nature. In their daily activities, companies and administrations are faced with the legal, but also ethical, need to respect fundamental rights in many areas.
Companies have fundamental rights, but not respecting the fundamental rights of others can lead to complex litigation, as well as entailing significant reputational costs. The examples that make this transversality visible are well known: the protection of personal data, the use of video surveillance cameras for work control and disciplinary purposes, the establishment by companies of internal whistleblowing channels, protocols against harassment and violence, equality plans, the prohibition of discrimination, the use of algorithms and artificial intelligence in decision-making processes and management, etc.
Nowadays, regulatory compliance is already one of the main purposes of any organisation, but the current times require a further step in the concerns of companies and administrations to advance in the respect of fundamental rights.
The ever-changing reality marked by technological advances is ahead of the legislator, which is why the red lines that must not be crossed are not clear. So much so that today, in addition to an exhaustive analysis of the specific features of behaviour in the new digital reality of fundamental rights conceived for an analogue world, new rights such as “neuro-rights”, which allude to the ethical and legal limits that must be adopted to protect mental privacy in the face of the development of science, are trying to be recognised.
Only with the appropriate specialisation in the field can first class legal advice be provided, effective and not merely formal, designed as a necessary resource both to guarantee respect for fundamental rights and, where appropriate, to defend them through the established procedures. This is the advice offered by Ejaso’s Fundamental Rights and European Union Law Unit, directed by María Emilia Casas Baamonde, Professor of Labour and Social Security Law, Senior Judge and former President of the Constitutional Court.