Holland Car Company B.V. – Court Ruling (Netherlands, 2022)

The controller is Holland Car Company, a company which deals in exclusive cars. It fired one of their employees (data subject) for urgent reasons. It had recorded a telephone call of the data subject with a client. In this call, the data subject discussed selling one of their own cars to the client, which their employment contract does not allow. The data subject had no knowledge of their calls being (potentially) recorded, nor did the client. The data subject felt that this was a breach of their privacy because it had not consented to the recording of their calls. The controller, however, stated that this recording was allowed as it suspected the data subject of breaking its employment contract and using the Company contacts to plan its own business. On top of that, it had informed their employees that calls could possibly be recorded. The data subject brought the action before court. First, the District Court considered that the controller could only record the employees conversations if it had a legitimate interest pursuant to and if this is necessary and proportional. Hence, it appeared the Court referred to Article 6(1)(f) GDPR. Moreover, it must also be clear, for both the employee and the client, that the conversation is recorded (including start and end moment), as well as the reason for the recording, retention period and that the recording is adequately secured. Moreover, the Court noted that secret recordings can only be done in exceptional circumstances, such as the suspicion of criminal facts or abuses within the organisation. If there are no such circumstances, the controller must obtain consent for these recordings. Hence, it appears the Court referred to Article 6(1)(a) GDPR. The Court stipulated that the fact that employees were informed that calls could be recorded, does not constitute as consent. After considering the controller's arguments, the Court assessed that the controller's arguments did not justify the exceptional circumstances, and