Court case W298 2255416-1 – Court Ruling (Austria, 2024)

The data subject's partner was observed by a professional detective (the controller), because the partner's employer doubted the partner's medical condition as they were on sick leave. The data subject was listed as "target person 2" in the controller's observation report and was therefore also photographed 4 times (sometimes alone) by the controller on their private property. The photos and reports were send to their partner's lawyer and to the labour court without the data subject's consent. Therefore, the data subject lodged a complaint against a professional detective (the controller) with the Austrian DPA ("Datenschutzbehörde - DSB"). The controller argued they had to observe the data subject in addition to the data subject's partner to fulfill the assignment. The controller did accidentally referred to the data subject as the "target person" instead of a "witness". The controller however stated that no sensitive data was collected about the data subject and that the photographs were not intended to be used as evidence. The data subject responded to this claim, arguing that the photographs were unnecessary, as a basic report would have sufficed for such investigative purposes. The data subject emphasised that the photos were taken on the weekend on private property without their permission. The controller further argued that the data subject's full name was obtained from a land registry search, and that the photographs were of poor quality, and therefore the data subject was not clearly identifiable. Moreover, the controller argued that such photographs do not constitute sensitive data, emphasising that the data subject also had some photos on social media. The data subject responded to these claims, stating that the photographs were not blurry and that they had never been and would never be called be as a witness in their partner’s proceedings. Moreover, the fact that the data subject had photos on social media did not allow the controller to take pictures