May a teacher have access to the content of his students’ mobile phones?


The right to privacy and to the protection of personal data is a fundamental right. It is not clear that a teacher, inside a school, may have the right to take a student’s mobile telephone away and view its contents. It is a very delicate issue. If a teacher knows that the mobile device has been used to commit some kind of fault, the teacher should take it away from the student in front of other teachers, and turn it off in front of them too. Later the student’s parents should be informed, and they should be asked to go to the school so that they authorise the school staff to view the contents inside the device: images that may have been recorded, or a message threatening someone, for example.

It is important to bear in mind that the minor may have personal images and information in his/her device… or about their parents… It must be guaranteed that all that information has not been copied to any other devices.

Nevertheless, a recent judgement by the Spanish High Court has backed the decision taken by a school’s principal in Madrid, who accessed the content of a student’s mobile phone without his parents’ previous consent.

This is what happened: a schoolgirl complained that one of her schoolmates – who was 12 years old – had shown her videos with pornographic content. The school’s principal confiscated the student’s device, and with the help of the school’s IT expert, he verified that those videos existence and the girl’s account. As a consequence of this, the boy’s father filed a complaint against the school for violating his child’s right to privacy, to a private life and to the secrecy of communications. The father filed his complaint before a court in Madrid and before the Spanish Data Protection Agency.

The Spanish High Court considers that: “the right to data protection is not unlimited but, just as is the case with any other right, it may be limited by the presence of other conflicting rights”. The High Court points out that the parents’ consent should have been required, as the issue involved a minor, but it also justifies the principal’s action by saying that “the real context in which the principal intervened should be taken into account, that is to say, in the framework of a disciplinary action initiated after a girl said she felt embarrassed watching the audiovisual files the plaintiff’s son showed to her and, therefore, in order to protect the rights of that girl and of other minors at school”.

It is a controversial judgement, but it has made the Spanish High Court’s position very clear, and it sets a case law precedent. We do not know what the family will do now, as they can still appeal before the Supreme Court.

We will keep close track of this case, as it is very important to know what the final resolution will be.


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