Germany: Employee Monitoring Ruled Unlawful

By Emma Garner, Philip Zender, Stéphanie Faber, Annette Demmel, Francesca Fellowes and Caroline Egan © 2017 Squire Patton Boggs August 21, 2017
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Germany: Employee Monitoring Ruled Unlawful

​On July 27, 2017, the German Federal Labor Court decided that a company's use of surveillance software to monitor computer use of its employees was in violation of Section 32 of the German Federal Data Protection Act and therefore data obtained through such software was inadmissible evidence.

The court ruled in favor of a plaintiff employee who was terminated for using a work computer quite frequently for private purposes. Through the keylogger software, which recorded all keyboard inputs and took screenshots regularly, the entire Internet activity of the employee was monitored. The employee was terminated without notice after the employer examined data that showed considerable use of the computer for private purposes. The employee acknowledged that he used the computer for private e-mail correspondence and the programming of a computer game during break times. The court held that, by using data obtained by such software, the employer was contravening data protection laws.

Data collected via a keylogger software cannot therefore substantiate a wrongful termination defense, as this data is inadmissible at trial. The court cited Section 32 of the German Federal Data Protection Act, which requires either a factual suspicion of a criminal offense or a material breach of duty by an employee in order to render surveillance legal. Neither of these requirements were fulfilled and therefore the data obtained could not be introduced as evidence. As a result, the employer had infringed the employee's constitutionally granted general "right of personality." 

Emma Garner and Francesca Fellowes are attorneys with Squire Patton Boggs in Leeds, U.K. Caroline Egan is an attorney in the firm's Birmingham, U.K., office. Philip Zender is an attorney in the firm's San Francisco office. Stéphanie Faber is an attorney with Squire Patton Boggs in Paris. Annette Demmel is an attorney in the firm's Berlin office. © 2017 Squire Patton Boggs. All rights reserved. Reposted with permission of Lexology.

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