Court case W252 2277317-1 – Court Ruling (Austria, 2024)

The data subject filed a complaint with the Austrian DPA (DSB) on the 5 January 2021 against her ex-partner (the controller). In her complaint, she detailed that her former partner had recorded their fights in order to use these recordings in divorce proceedings. The DSB rejected the data subject’s claim as it found that the DSB was not authorized to make a decision in this case due to the principle of proportionality (“Übermaßverbot”) as it found that making a decision in this case would excessively infringe on the concerned parties rights. The data subject appealed the decision of the DSB to the Federal Administrative Court (Bundesverwaltungsgericht - BVwG). The BVwG assessed whether the controller violated the data subject’s right to privacy through making recordings to be used as evidence in divorce proceedings. In assessing whether the so called household exception in Article 2(2)(c) GDPR prevents the application of the GDPR in this case, the BVwG referred to C-25/17, in which the CJEU showed that only exclusively personal or familial actions are precluded by this provision. The court held that the disapplication of the GDPR through the household exemption is to be interpreted in a restrictive way and that the controller did not intend to use the recordings for merely personal purposes. Therefore the court held that the GDPR applied to the processing and also rejected the DSB’s claim of the limitation due to the principle of proportionality. The court accepted that the recordings intended to be used in divorce proceedings can be legitimized under Article 6(1)(f) GDPR. It highlighted that as per C-26/22 and C-64/22, it must be assessed whether the legitimate interest cannot be achieved through less invasive means. The court held that the recording was indeed necessary for the interest pursued by the controller. However, the court stated that the interest of the data subject not to be recorded in her own home, outweighed the interest of the controller to avoid financial disadvantages in divorce proceedings. Therefore, the recording could not be based on Article 6(1)(f) GDPR and was therefore unlawful.