Court case 12 Sa 18/23 – Court Ruling (Germany, 2023)

The controller, an employer, hired a private detective to monitor the data subject, an employee, during a sick leave. Surveillance measures were due to the fact the controller had reasons to doubt that the data subject was actually sick. As a matter of fact, eventually the controller used the information collected in this way to fire the data subject. The latter appealed the decision before a labour court, claiming that the decision was unlawful. They also claimed non-material damages in violation of their personality right due to the surveillance. The court of first instance upheld the data subject’s claims and considered that damages had to be compensated pursuant to Article 82 GDPR. The controller appealed the first instance decision. The court rejected the controller’s appeal and confirmed that the data subject should be compensated for the damage suffered. At the outset, the court confirmed the unlawfulness of the surveillance measure. According to the court, regardless of whether the controlled tried to base the processing on contract (Article 6(1)(b) GDPR) or legitimate interest (Article 6(1)(f) GDPR), the requirement of necessity was not met in the present case. By choosing to monitor the data subject by means of a private detective, the controller did not adopt the less intrusive measure and also violated the principle of data minimisation. Concerning Article 82 GDPR, the court referred to the CJEU judgement in case [https://gdprhub.eu/index.php?title=CJEU_-_C-300/21_-_%C3%96sterreichische_Post_AG C-300/21], where the latter clarified that non-material damages under the GDPR cannot be granted in case of a mere violation of the Regulation. As a matter of fact, a negative consequence stemming from the violation must be proved. At the same time, it is not necessary that such a consequence reaches a certain threshold of seriousness to be compensated. The court found that the surveillance of the data subject by means of a private detective necessarily entaile