OGH - 9ObA120/19s

OGH - 9 ObA 120/19s
Court:	OGH (Austria)
Jurisdiction:	Austria
Relevant Law:	§ 33 Austrian Data Protection Act 2000 (DSG 2000) § 16 Austrian Civil Code (ABGB) § 1328a Austrian Civil Code (ABGB) § 18 Austrian Employment Act (AngG) § 96 Austrian Labour Constitution Act (ArbVG) § 10 Austrian Act on the Amendment of Employment Contract Law (AVRAG)
Decided:	22.01.2020
Published:
Parties:	Employee (anonymous) Employer (anonymous)
National Case Number/Name:	9 ObA 120/19s
European Case Law Identifier:	ECLI:AT:OGH0002:2020:009OBA00120.19S.0122.000
Appeal from:	OLG Linz (Austria)
Appeal to:
Original Language(s):	German
Original Source:	(in German)
Initial Contributor:	n/a

Austrian Supreme Court ("OGH") holds that if an employer installs and uses a GPS positioning system in company vehicles without a company agreement or the consent of the individual employee, this may give rise to a claim for damages by the employee concerned.

English Summary

Facts

An employer (defendant) used a GPS positioning system installed in the company vehicles (which were allowed for private use as well) without a company agreement or the consent of the individual employee (plaintiff). The system was able to transmit GPS data around the clock, to monitor the battery level and to recognize when the ignition was switched on.

The defendant tracked the plaintiff's use of his company vehicle during the plaintiff's work and leisure time. Several managers working for the defendant could view the data created by the GPS positioning system at any time via the internet. There was no company agreement on this GPS positioning system, especially since there was no works council in the company.

The defendant did not comply with the plaintiff's repeated written and verbal requests to refrain from the GPS tracking, at least in his leisure time. The GPS tracking caused considerable inconvenience for the plaintiff. He was often called by his superior and asked why he had left home so late. Since the plaintiff did not want his private life to be controlled and monitored by the GPS tracking of the company car, he did not drive the company car but went on holiday in another car.

Dispute

Does the tracking of a company vehicle (which an employee is also free to use in his leisure time) by an employer via a GPS positioning system require the employee's consent or a company agreement?

Is an employee who has been unlawfully monitored by such GPS positioning system entitled to non-material damages?

Holding

The Supreme Court upheld the decisions of the lower instances, which awarded the plaintiff compensation for the non-material damage he had suffered as a result, totalling EUR 2 400 (approximately EUR 400 per month of surveillance).

With the GPS tracking system, the defendant had introduced a technical measure for the permanent control of its sales staff, which affects human dignity, because it controls the privacy brought into the company by each employee. The use of this tracking system also violated the defendent's duty of care as an employer under § 18 Austrian Employment Act (AngG). Under § 96(1) Z 3 Austrian Labour Constitution Act (ArbVG) and § 10 Austrian Act on the Amendment of Employment Contract Law (AVRAG) this control measure would therefore have required a company agreement or the consent of the plaintiff in an individual contract in order to be admissible.

By using the GPS positioning system in the plaintiff's company vehicle during his working hours (and leisure time), the defendant unlawfully and culpably (intentionally) encroached on the plaintiff's private sphere, namely his very personal sphere of life. Since the intensity and extent of the violation also constituted a considerable violation of the plaintiff's private sphere, the plaintiff was entitled to non-material damages under § 1328a Austrian Civil Code (ABGB).

Comment

The case did not fall under the scope of the GDPR, as the GPS tracking started and ended before the GDPR was applicable (08. 05. 2017 until 31. 01. 2018). Hence the Supreme Court did not assess the case under Articles 6 et seqq. GDPR.

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.

Head
The Supreme Court, as a court of appeal in labour and social law cases, was established by the President of the Senate of the Supreme Court, Dr.
 Hopf as chairman, the court councillor of the Supreme Court Dr. Fichtenau and the court councillor of the Supreme Court Dr. Hargassner as well as the expert lay judges KR Mag. Paul Kunsky and Harald Kohlruss as further judges in the labour law case of the applicant party D***** S*****, represented by Martin Wakolbinger, lawyer in Enns, against the defendant I***** GmbH, *****, represented by Martin Singer, lawyer in Schwaz, on 7.434.83 EUR sA, on the defendant's appeal (value of the appeal: 2,400 EUR) against the judgment of the Higher Regional Court of Linz as court of appeal in labour and social law cases of 12 August 2019, GZ 11 Ra 45/19w-33, which did not allow the appeals of both parties against the judgment of the Regional Court of Linz as labour and social law court of 19 February 2019, GZ 9 Cga 79/18i-26, to be heard in closed session:
Saying
The revision is not followed.
Orders the defendant to pay the applicant the costs of the appeal proceedings, assessed at EUR 418,78 (including EUR 69,80 VAT) within 14 days
Text
Grounds for the decision:
The plaintiff was employed by the defendant as a sales representative from May 8, 2017 to January 31, 2018. His gross monthly salary was EUR 2,857.14. In addition, the plaintiff received a sales commission as well as a company car, which he was also allowed to use privately - with the offsetting of a non-cash benefit.
From the outset, the defendant had installed a GPS positioning system in this official vehicle - without the plaintiff's knowledge.
This GPS positioning system, which the defendant had installed in every company car of the sales department, was able to transmit GPS data around the clock, which enabled the defendant to locate these vehicles even in the leisure time of its employees. The GPS system was also able to monitor the battery level of the vehicles and recognize when the ignition was switched on. These data could be viewed at any time via the Internet by the defendant's managing director, sales manager, production manager and an office manager. The defendant did not use the GPS positioning system for strategic sales management. The defendant did not have a works agreement on this GPS positioning system, especially since there was no works council in the company.
After the plaintiff first became aware by chance on July 19, 2019, of the continuous GPS monitoring by the defendant, he declared to the sales manager, his direct superior at the defendant, that he did not agree with the continuous GPS tracking, especially in his free time. However, the defendant did not comply with the plaintiff's repeated written and oral requests to refrain from monitoring, at least during leisure time.
The GPS tracking system caused considerable inconvenience to the plaintiff. He was often called by his supervisor and asked why he had left home so late. Since the plaintiff did not want his private life to be controlled and monitored by the GPS tracking of the company car, he did not drive the company car but went on holiday in another car.
The plaintiff's employment relationship ended due to the defendant's notice of termination on December 18, 2017, and the plaintiff was on sick leave from December 11, 2017 to January 1, 2018. Thereafter, the defendant suspended his employment until 18 December 2017.
The plaintiff seeks from the defendant - to the extent that an appeal is still pending - damages of EUR 6,000 (approximately EUR 1,000 per month) based on § 1328a ABGB (Austrian Civil Code). The defendant has considerably encroached on his privacy by the constant illegal and culpable GPS monitoring, also in his leisure time. The constant surveillance had put him under massive psychological pressure.
The defendant denied, applied for dismissal of the action and argued that the applicant had been made aware of the GPS tracking system installed in the official vehicle, that he was in any event aware of it and agreed that the official vehicles were equipped with the GPS tracking system for reasons of efficient fleet management and use of resources and that, in any event, the applicant had not been monitored in his free time. There is no significant violation of the plaintiff's privacy, because the defendant did not make use of circumstances that were capable of exposing the plaintiff in public.
The first court awarded the plaintiff non-material damages of EUR 2,400 (EUR 400 per month) by applying § 273 ZPO. According to the court, the monitoring of an employee by means of a GPS positioning system constitutes an operational control measure which also affects human dignity according to the case-law of the ECtHR. According to § 96.1 no. 3 ArbVG, its introduction would have required a works agreement. However, no such agreement existed. Nor had the plaintiff agreed to this measure within the meaning of § 10 AVRAG. Since the defendant had therefore unlawfully and culpably encroached on the plaintiff's private sphere, the plaintiff was entitled to non-material damages pursuant to § 1328a ABGB.
The Court of Appeal confirmed this decision. It shared the legal assessment of the court of first instance and added that even the clearly unlawful introduction of the defendant's technical monitoring system had exceeded the materiality threshold required for the award of non-material damages under § 1328a.1 sentence 2 ABGB. This alone was sufficient for the damaging success of an unlawful encroachment on the plaintiff's private sphere.
The Court of Appeal allowed the appeal because there was no supreme court ruling on the question of whether non-material damages under § 1328a of the Austrian Civil Code are due if the introduction and use of control measures and technical systems affecting human dignity was carried out without complying with the requirements of § 96 para. 1 no. 3 of the Labor Constitution Act or § 10 para. 1 of the AVRAG.
In its appeal, the defendant requests that the judgment under appeal be altered so as to dismiss the action or, in the alternative, that it be set aside.
In his appeal response, the plaintiff requests that the defendant's appeal be dismissed or, in the event of an appeal, that it be dismissed.
The appeal is admissible; however, it is not justified.
Legal assessment
1.1 Paragraph 1328a(1) of the ABGB states
Anyone who unlawfully and culpably encroaches on the private sphere of a person or discloses or exploits circumstances from the private sphere of a person shall compensate him for the damage caused thereby. In the case of substantial violations of privacy, for example if circumstances are exploited in a way that is likely to expose the person in public, the claim for compensation also includes compensation for the personal impairment suffered.
1.2 This provision, which was inserted into the ABGB by the Civil Law Amendment Act 2004 - ZivRÄG 2004 (Federal Law Gazette I 2003/91), is to be understood as an implementing provision for the enforcement of the personal rights enshrined in § 16 ABGB in its core area of the dignity of the individual. The protected legal interest of the provision is privacy (4 Ob 51/12x Pkt 6.3.). With § 1328a ABGB, the right to privacy, which could already be derived from numerous statutory provisions by then, was expressly anchored in the ABGB as an independent right of personality (RV 173 BlgNR 22nd GP 5; Hinteregger in Kletečka/Schauer, ABGB-ON1.04 § 1328a Rz 1). According to the legislative materials (RV 173 BlgNR 22. GP 1), the previously inadequate protection of privacy under civil law was taken into account by the fact that the injured party was now also granted a claim for immaterial damages against substantial unlawful interference with his or her private and intimate sphere.
1.3 The concept of privacy covers the (highly) personal sphere of a person's life, which is only known to a limited circle of people and is usually not made accessible to the general public (Reischauer in Rummel, ABGB4 § 1328a Rz 3; Hinteregger in Kletečka/Schauer, ABGB-ON1.04 § 1328a Rz 2; RV 173 BlgNR 22. GP 19; see RS0125721). A point of reference for the interpretation of the term "privacy" may be the related term "private life" in Article 8.1 ECHR (Wittwer in Schwimann, ABGB-Takom4 § 1328a Rz 3; Danzl in KBB5 § 1328a ABGB Rz 3; RV 173 BlgNR 22nd GP 17).
1.4 'Personal rights' are absolute rights and as such enjoy protection against interference by third parties (RS0008999). According to the prevailing opinion, the personal rights of employees must also be taken into account in the employment relationship. This results in particular from §§ 16, 1157 ABGB and § 18 AngG (Grünanger, Videoüberwachung im Betrieb, ARD 6467/5/2015; see 9 ObA 109/06d; 9 ObA 95/08y; 9 ObA 82/15x).
2.1 According to § 96 (1) 3 ArbVG, the introduction of control measures and technical systems for the control of employees by the company owner, insofar as these measures (systems) affect human dignity, requires the consent of the works council in order to be legally effective. Correspondingly, § 10 para. 1 AVRAG stipulates that the introduction and use of control measures and technical systems which affect human dignity is not permitted unless these measures are regulated by a works agreement as defined by § 96 para. 1 no. 3 ArbVG or are carried out with the consent of the employee in companies in which no works council is established.
2.2 It is undisputed that there is neither a company agreement nor the consent of the plaintiff for the introduction and use of the GPS positioning system in certain official vehicles of the defendant (including the plaintiff's). However, this would have been necessary for the following reasons:
2.3 A control measure as defined in Section 96(1)(3) ArbVG is understood to be the systematic monitoring of characteristics, actions or general behaviour of employees by the employer (9 ObA 109/06d; see Felten/Preiss in Gahleitner/Mosler, ArbVG³ Section 96 Rz 44; Reissner in ZellKomm3 Section 96 ArbVG Rz 22; Jabornegg in Strasser/Jabornegg/Resch, Komm zum ArbVG, Section 96 Rz 129). This also includes regulations initiated by the proprietor which stipulate in particular when, under what circumstances and in what way employees are inspected during their work performance (even if it is performed outside the premises) for any purpose (Jabornegg in Strasser/Jabornegg/Resch, Komm zum ArbVG, § 96 Rz 129; cf. 9 ObA 109/06d).
2.4 The GPS control system initiated by the defendant is undoubtedly a long-term systematic monitoring possibility of the whereabouts of the company vehicle and thus of the plaintiff, who used this company vehicle both professionally and privately (see Goricnik/Grünanger in Grünanger/Goricnik, Arbeitnehmer-Datenschutz und Mitarbeiterkontrolle2 Kap 7 Rz 7.87 and 7.93). In doing so, the defendant encroached on the plaintiff's privacy.
3.1 In the case of measures or systems which - as here - fulfil the objective aptitude for monitoring employees, it must then be further examined pursuant to § 96 para. 1 no. 3 ArbVG or § 10 para. 1 AVRAG whether human dignity is affected. With regard to the undefined value and legal concept of "human dignity", it was already explained in Decision 9 ObA 109/06d (fingerprint scanner) that it must be derived from the concretisation of general clauses of civil law (in particular § 879 ABGB) or labour law (in particular the duty of care as defined in § 18 AngG, § 1157 ABGB). Of particular importance in this context is § 16 ABGB, according to which every person has innate natural rights. This is a central norm of the Austrian legal system, which protects human dignity in its core area (9 ObA 23/15w Pkt 3. mwN; RS0008993). The legislator's aim in linking this to "human dignity" in § 96 (1) 3 ArbVG is to ensure that the free development of the employee's personality is not subject to excessive interference (9 ObA 23/15w Pkt 3. mwN). An employee's privacy is also one of the legal interests protected by § 96 Paragraph 1 Z 3 ArbVG (9 ObA 23/15w Pkt 3. mwN).
3.2 Human dignity is 'affected' by a control measure or system of control if it controls the privacy brought into the company by the employee. Apart from the private sphere, human dignity can also be affected by the intensity of the control of the employee's work performance and work-related behaviour, especially if this control is organised with excessive intensity and exceeds what is typical and necessary for employment relationships of this kind (9 ObA 109/06d mwN; 9 ObA 23/15w pt 5.). On the other hand, the "touching" of human dignity does not require such a density of intervention that would already be considered an "injury". According to the legislator's ideas, § 96.1 no. 3 ArbVG is rather intended to regulate the narrow borderline between measures that violate human dignity (and are therefore immoral anyway) and measures of the business owner that do not affect human dignity at all (9 ObA 23/15w clause 4.).
3.3 The answer to the question of whether human dignity is even affected by a control measure requires a comprehensive weighing of the mutual interests (9 ObA 109/06d mwN = DRdA 2008/26 [zust Mosler] = ZAS 2007/16 [zust Schrank]; Biometric work recording by finger scanner, RdW 2007/371 [zust Maurer]; 9 ObA 23/15w Pkt 8. mwN = DRdA 2016/2 [zust Reissner/Schneeberger]; Jabornegg in Strasser/Jabornegg/Resch, ArbVG § 96 Rz 140; Reissner in Zellkomm3 § 96 ArbVG Rz 24 aA Goricnik, replica to Reissner/Schneeberger, note to OGH 9 ObA 23/15w DRdA 2016/2, Alkoholkontrollen per Alkomat, DRdA 2016, 362 and Felten/Preiss in Gahleitner/Mosler, ArbVG³ § 96 Rz 54 ua). Thus, on the one hand, the interests of the employer, who in the employment relationship has a fundamental right to control the employees, but in addition, for example, also wants to secure and protect his property, and on the other hand, the interests of the employee in safeguarding his personal rights must be weighed against each other. The principle of proportionality has a regulatory function here. Personal rights may only be restricted to the extent that this is required by a legitimate interest of the employer in control. The most gentle - still effective - means must be chosen (9 ObA 23/15w Pkt 8. mwN; cf. RS0116695).
3.4 In the first instance proceedings, the defendant relied exclusively on the fact that the weighing of interests to be carried out here should be in its favour because the GPS positioning system serves efficient fleet management and the use of resources. According to the binding findings, however, this is not the case. To the extent that the defendant now, in its appeal, for the first time justifies its interest in using the GPS positioning system with its right as owner to locate the company car during the plaintiff's working hours, it violates the prohibition of innovation in § 504.2 ZPO. However, the defendant did not succeed in proving (RS0120423) that it had acted in pursuit of a legitimate interest and that the measure taken was, by its nature, suitable for achieving its purpose. By using the GPS positioning system in the plaintiff's official vehicle during his working hours (and leisure time), she unlawfully and culpably (intentionally) encroached upon the plaintiff's private sphere, namely his highly personal sphere of life (para. 1328a, 1st paragraph, ABGB [Austrian Civil Code], 1st case).
3.5 On the basis of these considerations, the permanent possibility of locating during the plaintiff's working hours in any case affects human dignity (see Goricnik/Grünanger in Grünanger/Goricnik, Arbeitnehmer-Datenschutz und Mitarbeiterkontrolle2 Kap 7 Rz 7.98; Binder in Tomandl, Arbeitsverfassungsgesetz § 96 Rz 74; Rebhahn in Kritik und Fortschritt im Rechtsstaat, Volume 34, Alles unter Kontrolle? 144; Halwax, Rechtliche Rahmenbedingungen für den Einsatz von Telematiklösungen im Güterbeförderkehr, DRdA 2012, 532 [533]; cf. Rauch, Grenzen der Kontrollmaßnahmen, ASoK 2010, 102 [105]). Such controls of the employer outside of the period of employment are inadmissible in any case (Löschnigg, Arbeitsrecht13 Rz 11/116; Rebhahn in Kritik und Fortschritt im Rechtsstaat, Vol. 34, Alles unter Kontrolle?, 144; see ECHR Bsw 35623/05 Pkt I.2.a.).
4. the injured party is only entitled to non-material damages under § 1328a ABGB in the case of "substantial" violations of privacy. The "materiality threshold" is a general limit for claims for compensation for non-material damage in the case of encroachments on personal rights. The assessment of the materiality of an encroachment depends on the circumstances of the individual case: The more "private" a circumstance is, in which an intervention or exploitation is made, the more serious the fault of the infringer is and the more serious the consequences for the person affected are, the more likely immaterial damage claims are to be considered (RV 173 BlgNR 22. GP 19). Therefore, the intensity and the extent of the injury are decisive (Reischauer in Rummel, ABGB3 § 1328a ABGB Rz 11). The extent of the intervention must not be merely insignificant (Hinteregger in Kletečka/Schauer, ABGB-ON1.04 § 1328a Rz 8). In the compensation of this non-material damage, too, the idea of compensation, which is inherent in Austrian liability law, is in the foreground. Immaterial damages are to be awarded if the person concerned feels that the intrusion into his or her private sphere is also such (Harrer/Wagner in Schwimann/Kodek4 § 1328a ABGB Rz 6; Helmich, ecolex 2003, 888 [Pkt D]). As an example, the law cites the exploitation of private circumstances in a way that is likely to expose the person concerned in public as a significant encroachment on privacy. This was taken from the provisions of § 7 (1) MedienG and § 33 (2) DSG 2000 in the versions valid at the time (RV 173 BlgNR 22. GP 19).
(5) The argument emphasised in the appeal that the encroachment on the plaintiff's private sphere was not relevant here because the defendant had not exploited the plaintiff's private circumstances in a way that was likely to expose the plaintiff in public is not relevant. The defendant ignores the fact that it maintained its unlawful monitoring measure, although the plaintiff complained to it several times about its actions and asked it to refrain from monitoring the company car. The defendant did not refrain from its unlawful conduct, which led to considerable inconvenience for the plaintiff. Given the state of the case, it cannot be assumed that the infringement of personal rights is insignificant. Rather, there has been a substantial violation of the plaintiff's privacy within the meaning of § 1328a, Subsection 1, ABGB.
6. the award of damages to the plaintiff in the sense of § 1328a ABGB is therefore justified. The question of the amount is not addressed in the defendant's appeal. The Senate considers it appropriate.
The defendant's appeal was therefore not granted.
The decision on costs is based on Articles 41 and 50 of the ZPO.