BVwG - W252 2277317-1

BVwG - W252 2277317-1
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 2(2)(c) GDPR Article 6(1)(f) GDPR
Decided:	13.09.2024
Published:	20.11.2024
Parties:
National Case Number/Name:	W252 2277317-1
European Case Law Identifier:	ECLI:AT:BVWG:2024:W252.2277317.1.00
Appeal from:	DSB (AT)
Appeal to:
Original Language(s):	German
Original Source:	RIS (in German)
Initial Contributor:	ao

A court held that the data subject’s interest not to be recorded in her own home outweighed the controller’s interest in using these recordings in divorce proceedings.

English Summary

Facts

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).

Holding

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.

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English Machine Translation of the Decision

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

Postal address:
Erdbergstrasse 192 – 196
1030 Vienna
Tel: +43 1 601 49 – 0
Fax: +43 1 711 23 – 889 15 41
E-mail: einlaufstelle@bvwg.gv.at
www.bvwg.gv.at
Decision date
September 13, 2024
Reference number
W252 2277317-1/11E
IN THE NAME OF THE REPUBLIC!
a
The Federal Administrative Court, through Judge Mag. Elisabeth SCHMUT LL.M. as
Chairwoman and the expert lay judges Dr. Claudia ROSENMAYR-KLEMENZ and

Mag. AdrianaMANDL as assessors on the complaint of XXXX , represented by gpls

- Gloß Pucher Leitner Gloß Enzenhofer Rechtsanwälte, 3100 St. Pölten, Wiener Straße 3,

(co-participating party before the Administrative Court XXXX , represented by Taufer Huber

Haberer Rechtsanwälte, 3390 Melk, Bahnhofplatz 4), against the decision of the

Data Protection Authority dated June 29, 2022, GZ XXXX , in a closed session in a

data protection matter, rightly ruled:

A) The complaint is upheld and it is determined that the co-participating party violated the

complainant's right to confidentiality by

making tape recordings of arguments in order to present them as evidence in the contentious

divorce proceedings.

B) The appeal is not admissible. - 2 -

Reasons for the decision:

I. Procedure:

1. By submission of January 5, 2021, the complainant (hereinafter "BF") filed a

data protection complaint with the authority concerned and, in summary, argued that the

party involved (hereinafter "MP") had violated her right to confidentiality by

making tape recordings without her consent in order to present them as evidence in the contentious divorce proceedings if necessary. The data processing violated the principles of legality, purpose limitation and data minimization.

2. By decision of June 29, 2022, the authority concerned rejected the complaint as unfounded.

In summary, it stated that the budgetary exception of the GDPR was not applicable and that the authority concerned was limited in terms of a so-called

"prohibition of excess". As a result, the tape recordings were at least

abstractly and conceivably suitable to substantiate the MP's claims in the divorce proceedings. There was no violation of the right to confidentiality.

3. The present complaint of the BF dated August 5, 2022 is directed against this decision.

Essentially, it argued that the "prohibition of excess" was not applicable to civil court proceedings. In the divorce proceedings, the MP had no need for evidence. The MP had violated the principle of good faith and had no justification for the processing.

4. The authority concerned submitted the complaint, attaching the administrative act, with a written submission dated August 29, 2023, received on August 30, 2023, and requested that the complaint be dismissed - with reference to the reasons for the decision.

Evidence was obtained by inspecting the administrative and court file.

II. The Federal Administrative Court considered:

1. Findings:

1.1. In a written statement dated July 8, 2020, the MP filed a divorce suit against the BF.

In it, the MP argued that the BF's aggressiveness, her behavior towards the MP, her - 3 -

provocative statements, her spiteful comments, her insults and also

her behavior towards the children had led to the breakdown of the marriage.

1.2. To do this, the MP secretly made tape recordings of arguments with the BF in order to record their course and to be able to present these tape recordings as evidence in the later divorce proceedings. The MP began making the audio recordings at a time when the marriage was no longer intact or broken for her, and started recording whenever she realized that an argument was looming. Over time, the BF knew that the MP was making audio recordings.

1.3. The MP made tape recordings of arguments between October 2019 and July 15, 2020.

1.4. The MP submitted the tape recordings as evidence against the BF to the District Court

XXXX as part of an application for a temporary injunction pursuant to Section 382 Z 8c EO. There

the "tape recording of July 12, 2020, Part 3" was played at the hearing on September 23, 2020,
and a USB stick with the recordings was handed over to the court.

2. Assessment of evidence:

2.1. The findings regarding the divorce suit are clear from the

unobjectionable administrative act to which the suit of July 8, 2020 is attached. From this it emerges that the MP based the divorce suit on the breakdown of the marriage. The central argument in this suit is, among other things, the behavior of the BF towards the MP (see OZ 1, p. 53 ff). 2.2. The determination of the motives for the audio recordings arise in particular from the minutes of the BG XXXX dated September 23, 2020, XXXX, in which the MP was explicitly questioned about the audio recordings. She stated: “When asked how I decided what to record: When I came home and got out of the truck, I turned the device on. I greeted the children, my wife and then it started. When asked whether I thought that recording conversations was a normal family life: it was no longer intact, but rather broken. I didn't know what else to do because untruths were constantly being spread about me. When it was clear that things were getting heated, I recorded them. I've been doing that since October 2019." (see OZ 1, p. 39). It is therefore clear that the MP made the audio recordings specifically for use in the divorce proceedings, after all, when questioned, she stated that family life was no longer intact at the time of the recordings, but rather shattered - 4 -. It should not be forgotten that the BF stated before the BG XXXX that the MP even had the recording device under her pillow (see OZ 1, p. 41). However, this does not change the MP's stated intention to record arguments, since these can basically occur in all situations. In particular, no indications emerged throughout the proceedings that the tape recordings were used for other purposes. Furthermore, the transcripts submitted confirm that the recordings were made in situations in which either an argument was already underway or depicted the situation when the BF came home from work, which just as quickly ended in verbal arguments (see also the transcripts of the tape recordings submitted, which only show arguments within the family; OZ 1, p. 10 ff). The finding that the tape recordings were generally made secretly is based on the minutes of the BG XXXX, according to which the MP did not inform the BF that he was recording the conversations, but that she knew over time that he was recording conversations. This assumption is confirmed by the comprehensible statement by the

BF, according to which she knew over time where the MP had the recording device ready (trouser pocket,

headrest) and herself stated that she had noticed that the MP was making recordings.

2.3. The time period of the tape recordings also emerges from the minutes of the BG

XXXX dated September 23, 2020, XXXX in which the MP stated comprehensibly that she had started the

recordings at the end of October 2019. The end time of the recordings of the arguments emerges

on the one hand from the minutes, according to which the BF moved out on July 15, 2020 and

on the other hand from the statement by the MP dated August 23, 2021, according to which she made the recordings

“during the time when he was living with his wife.”

However, statements by the BF from July 12, 2020 were discussed in the hearing, and a tape recording from July 12, 2020 was played, which clearly indicates that arguments were recorded until the BF moved out (see in particular OZ 1, p. 32, 39, 41, 128). 2.4. The submission, playback and handover of the recordings to the court on a USB stick result from the harmless administrative act, to which the application for an interim injunction by the MP against the BF from August 27, 2020, together with the transcripts of the recordings and the minutes of the BG XXXX from September 23, 2020, XXXX are attached. It is clear from the
minutes that the "tape recording of July 12, 2020, part 3"

was played or a USB stick was handed over (see OZ 1, p. 9 ff, 41). - 5 -

3. Legal assessment:

Regarding A)

The admissible complaint is justified.

3.1. Subject of the complaint:

The subject of the complaint is exclusively the question of whether the MP violated the BF's fundamental right to

confidentiality by "making tape recordings without her consent in order to present them as evidence in the contentious divorce proceedings if necessary" (see the data protection complaint of the BF, represented by a lawyer, dated January 5, 2021,

which contains an express request for "determination"; as well as

consistent information in the decision in question on the subject of the complaint; OZ

1, p. 122, 167). Since both the data protection complaint expressly only aims to establish the illegality of the making of the tape recordings and the decision of the authority concerned "only" makes the making of the tape recordings the subject of the complaint, only the admissibility of the making of the tape recordings was relevant, but not the possible admissibility of the actual submission to court (see also the MP's submission in its statement of August 23, 2021, which is essentially limited to the usability of a tape recording in court - which is not to be assessed here; OZ 1, p. 127 ff.).

3.2. On the applicability of the GDPR:

According to Article 2 Paragraph 2 Letter c of the GDPR, the GDPR does not apply to the processing of personal data by natural persons for the exercise of exclusively personal or family activities.

According to the case law of the ECJ (on the identical Article 3 Paragraph 2, second indent of Directive 95/46/EC), this provision excludes data processing carried out for the exercise of activities which are not simply stated to be personal and family-related, but rather to be "exclusively" personal or family-related. It therefore only covers activities which are part of the private or family life of private individuals. In this respect, an activity cannot be regarded as exclusively personal or family-related within the meaning of this provision if its purpose is to make personal data accessible to an unlimited number of people, or if it extends even partially into the public sphere and is therefore directed at an area outside the private sphere of the person processing the data (cf. ECJ 10.07.2018, C-25/17, Jehovan todistajat, para. 40 ff with further references). The decisive factor for the exception from the scope of application of the GDPR (“household exemption”) stipulated in Article 2(2)(c) GDPR is that the data is handled within the private sphere. Publicly visible data collection is not exempted due to the household exemption. The personal-family area is exceeded, for example, if a spouse provides the other spouse's email traffic or chat logs in a guardianship procedure concerning the children they have in the form of printouts to the guardianship court (see RIS-Justiz RS0132579). Thus, although the recordings were basically made in a family environment, the MP has already exceeded the personal-family area by not making the recordings for private purposes, but with the purpose of "submitting them as evidence in the contentious divorce proceedings if necessary". Since exceptions to the scope of application of the GDPR are to be interpreted restrictively, as already stated by the Supreme Court, even court proceedings with a strong private/family connection fall within the scope of application of the GDPR. The scope of application of the GDPR is therefore open. 3.3. On the jurisdiction of the authority concerned:

It is not clear to what extent the "delimitation of the authority's jurisdiction" cited by the authority concerned would be relevant for the data processing in question (production of sound recordings by a spouse). Furthermore, contrary to its own statements, the "civil court investigation" or the actual presentation to court is not the subject of the proceedings, but merely the production of the sound recordings (see the submission of the authority concerned, OZ 1, p. 162 f.).

Against this background, the reference by the authority concerned to the case law on the "prohibition of excessiveness" is inappropriate.

3.4. On the legality of making the sound recordings:

The ECJ has repeatedly ruled that any processing of personal data must be consistent with

the principles for data processing set out in Art. 5 (1) GDPR and must meet the requirements for the - 7 -

legality of the processing set out in Art. 6 of this regulation (see ECJ 21.12.2023, C-667/21,

Krankenversicherung Nordrhein, para. 76).

According to Art. 6 (1) (f) GDPR, processing is lawful if it is necessary to safeguard the

legitimate interests of the controller or of a third party, unless

the interests or fundamental rights and freedoms of the data subject which require the protection of

personal data prevail.

The processing of personal data pursuant to Art. 6 (1) (f) GDPR is lawful under three cumulative conditions: first, a legitimate interest must be pursued by the controller or a third party, second, the processing of the personal data must be necessary to achieve the legitimate interest, and third, the interests or fundamental rights and freedoms of the person whose data is to be protected must not prevail. The reasonable expectations of the data subject as well as the scope of the processing in question and its impact on that person must be taken into account. The interests and fundamental rights of the data subject prevail

particularly when personal data are processed in situations in which

a data subject does not reasonably expect such processing

(cf. ECJ 7 December 2023, C-26/22 and C-64/22, SCHUFA Holding (discharge of residual debt), paras. 75, 80, 87; or repeating this VwGH 1 February 2024, Ro 2020/04/0031).

Applied to the case, this means:

In fact, the MP made audio recordings of arguments with her (then)

wife (the BF) in order to use them in divorce proceedings.

3.4.1. On the legitimate interest:

In principle, a broad spectrum of interests can be considered legitimate (see ECJ
21.12.2023, C-667/21, Krankenversicherung Nordrhein, para. 76). The enforcement of

legal claims represents a legitimate interest in any case (see also Jahnel,

Commentary on the General Data Protection Regulation Art. 6 GDPR para. 75). The OGH has already stated

several times that, in view of an impending divorce procedure and the

still unresolved question of fault, there is a legitimate interest in substantiating one's procedural position by

observing one's spouse by having him observed by a detective in order to obtain evidence of an

adulterous/illegal relationship of one's spouse in order to ward off disadvantages in terms of maintenance and property law. The limit is - 8 -

however, where the surveillance is obviously superfluous, hopeless from the outset and

clearly inappropriate or where there is an abuse of law (cf. OGH, March 29, 2022,

10 Ob 21/21t). Judicial enforcement of the law, such as a divorce here, therefore

can be considered a legitimate interest (even if it is not carried out by a detective agency).

3.4.2. On necessity:

As stated, the MP based her divorce suit essentially on the

aggressiveness of the BF, her behavior towards the MP, her provocative statements, her

hateful comments, her insults and also her behavior towards the

children, which in total led to the breakdown of the marriage. The BF is certainly right in saying that the requirements for necessity are higher than the general interest of a party in having particularly conclusive evidence (see OZ 1, p. 213). According to the case law of the ECJ, it must be taken into account whether the legitimate interest cannot be achieved in a reasonable manner just as effectively by other means that interfere less with the fundamental rights and freedoms of the persons concerned, in particular the rights to respect for private life and to protection of personal data guaranteed by Articles 7 and 8 of the Charter (see ECJ December 7, 2023, C-26/22 and C-64/22, SCHUFA Holding (discharge of residual debt), para. 77). With regard to an interim injunction pursuant to Section 382c EO, the OGH described the

"installation of a hidden camera in the shared house and installation of a

hidden sound recording device and installation of a hidden tracking device in the car"

as well as the "monitoring and spying on telephone contacts [...] and [...]

"obtaining evidence" (hidden mobile phone used as a sound recording device

in the marital home, taking hair from the hairbrush for a drug test)" as

"serious breaches of trust and intolerable intrusions into the privacy of a

spouse [...], which are under no circumstances to be tolerated, even in the context of pending divorce proceedings". He justified this, among other things, by arguing that the systematic, covert, identifying technical surveillance of the most personal area of life was not comparable in its intensity of intervention to the hiring of a private detective (see OGH 22.03.2023, 7 Ob 38/23y, paras. 16-18, according to which the surveillance measures described justify an interim injunction under Section 382c EO). In the present case, however, the MP did not carry out continuous, continuous surveillance, but instead recorded arguments or often escalating situations when returning home. The MP also did not install any hidden cameras (these would be more intrusive than pure audio recordings) or tracking devices, did not carry out any DNA tests or search the BF's data storage devices. The punctual audio recording in question would therefore be comparable to the punctual surveillance of a detective agency. However, the OGH already considered the independent, covert and punctual audio recording of 35 arguments with the cell phone over a period of six and a half months to be inadmissible and confirmed a claim for injunctive relief and deletion. In support of this, it stated that the defendant there did not claim a lack of evidence, since he was able to cite witnesses regarding the contact with the children and - contrary to his assertion - criminally relevant behavior was not an issue in the proceedings (see OGH January 20, 2020, 1Ob1/20h). The present complaint against the decision is also based on the absence of a need for proof (see OZ 1, p. 212 f). However, the burden of proof rules in civil proceedings are not fully transferable to the administrative proceedings at hand. In administrative proceedings, the principle of material truth applies (official principle and principle of ex officio procedure within the meaning of Sections 37, 39 (2) AVG), which the VwGH also considers to be compatible with Union law in data protection proceedings (see VwGH April 19, 2024, Ra 2022/04/0006).

In general, expressions and behavior are particularly difficult to prove. In addition, divorce proceedings are generally a very emotional matter and in the domestic sphere – as here – there are usually no (uninvolved) witnesses. In this case, it was therefore not possible for the MP to reasonably support her divorce suit equally effectively with other means (see the MP's statement in the divorce proceedings "I didn't know what else to do because untruths were constantly being spread about me"; OZ 1, p. 99). The decisive factor is, among other things, the criterion established by the ECJ that alternative means must be equally effective, which would be significantly less effective, for example, in the case of a "dispute diary" (notes on disputes, chosen wording in the argument, behavior), especially in an emotionally charged divorce proceeding such as this one, in which accusations are made against each other. Alternative methods were not reasonable for the MP because the divorce action in question was based precisely on the provocative statements, spiteful comments and insults chosen by the BF, which would hardly be provable without audio recordings. The assertion of a lack of evidence - as demanded by the BF - is not relevant in the present case, as already explained above. - 10 -

The audio recordings of the arguments were also appropriate and significant for the purpose (enforcing

a divorce suit based on verbal statements), as they

can conceivably help to enforce the divorce suit. In fact,

the recordings were presented in the proceedings before the BG XXXX, and one recording was also

played, which confirms the fundamental relevance in the sense of "conducive to achieving the purpose"

(see Hötzendorfer/Tschohl/Kastelitz in Knyrim, DatKomm Art 5

GDPR Rz 37 on relevance, among others).

The recordings were also limited to the extent absolutely necessary for the realization of the legitimate interest, as the MP only recorded

the arguments (relevant to her for the divorce) and the often escalating situations of coming home. In addition, the MP only began recording when the marriage was already falling apart for her, which also limited the recording period. Although this is already borderline long at around nine months (October 2019 to July 2020), it is still just about appropriate in view of the divorce proceedings in question. According to the case law of the Supreme Court, serious marital misconduct through verbal abuse requires “repeated insults” or “multiple outbursts”, which must not just be frequent emotional outbursts without insults, in view of difficult living conditions (see RIS-Justiz RS0056787; RS0056652 on marital misconduct). In this respect, the longer “observation period” appears proportionate. The audio recordings of the arguments therefore ultimately meet the requirements of necessity. 3.4.3. On the balancing of interests:

With regard to the balancing of interests, the BF had an interest in protecting her

personal data (specifically her spoken words), as well as her right to her own words within the meaning of Section 16 ABGB (see OGH 20.01.2020, 1 Ob 1/20h, para. 2). This interest is

strengthened by the fact that the recordings were made in an environment that is particularly worthy of protection

(BF's home) and in the context of everyday family life.

In principle, the BF did not have to expect that she would be secretly recorded in her apartment by her

(then) spouse.

This is offset by the MP's interest in enforcing the divorce and the

associated defense against maintenance and property law disadvantages. The defense/enforcement of removal orders, interim injunctions and custody claims, which are usually closely related to divorces, must also be taken into account (see also OZ 1, p. 31 ff, 38, 128). As already explained, the ECJ stated that the interests and fundamental rights of the data subject prevail, in particular, when personal data are processed in situations in which a data subject does not reasonably expect such processing (see ECJ 7 December 2023, C-26/22 and C-64/22, SCHUFA Holding (discharge of residual debt), paras. 75, 80, 87; or repeating this VwGH 1 February 2024, Ro 2020/04/0031). In principle, the interest in processing data to assert, exercise or defend legal claims is recognized by the Union legislature and is of great importance - as can be seen from the exception to the prohibition on processing sensitive data in Article 9 paragraph 2 letter f of the GDPR. However, it must be taken into account that the interest of the MP in divorce in the specific individual case is not as high as it would be in a marriage involving massive physical or psychological violence. Although the MP has certainly stated that she was often insulted

or that untruths were constantly spread about her, this does not mean that the intensity of the BF's choice of words for the MP reached such an intensity that it could be classified under the term "psychological terror", so any behavior that does not correspond to normal manners cannot, from a subjective point of view, justify the unreasonableness of living together (see RIS-Justiz

RS0121302). The MP has not stated any significant psychological impairments to her health in this regard, nor did these come to light during the proceedings.

The defense/enforcement of removal orders, interim injunctions and

custody claims is not decisive in the present case, since it concerns the

shared "marital home", or in the case of the custody claims, the children

between MP and BF. In this respect, the respective interests of the MP and the BF are at least

similar in the custody of the children they have together, but also in the marital home, even if the MP bought the property a year before the marriage, because the house was subsequently built jointly while the marriage was still in force (cf. OZ 1, p. 31, 36).

The BF's interest in protecting her data, her spoken word and the very high interest in not being recorded in her own four walls

therefore outweighs the MP's interest in defending against property-related disadvantages

and maintenance claims in the divorce proceedings together with the MP's interest in - 12 -

enforcing the divorce. Especially in a particularly protected area of life

(one's own home), one must not expect - despite the threat of divorce proceedings - that arguments will be recorded for nine months. This view cannot be changed by the fact that the BF knew "in time" that the MP was making recordings. On the one hand, some of the recordings were made secretly - as explained - and, in addition, the assumption/knowledge that recordings are being made does not change the fact that the BF's privacy in her home is particularly worthy of protection. In addition, according to Sections 66ff of the Marriage Act, the financial situation of the obligor must be taken into account when determining maintenance, which weakens the MP's interest in defending against maintenance claims. Since the BF's interests outweigh those of the MP, the MP cannot rely on the justification under Article 6 Paragraph 1 Letter f of the GDPR. Since no other justifications were claimed or otherwise emerged, the determination of the BF's data through the MP's audio recordings was therefore unlawful. 3.5. The complaint was therefore upheld and it was determined that the MP had violated the BF's

right to confidentiality by making tape recordings of arguments in order to present them as evidence in the contentious divorce proceedings.

3.6. The requested oral hearing could be dispensed with because the facts essential to the legal assessment had already been collected by the

administrative authority in full and in a proper investigation procedure

and at the time of the decision of the court of first instance still had the legally required timeliness and completeness. The complaint also did not allege any relevant facts that contradicted the result of the administrative investigation procedure or

went beyond it (VwGH 24.02.2015, Ra

2014/19/0171).

The facts relevant to the decision, in particular with regard to the filing of the divorce suit, the tape recordings, the recording period and the MP's motives, are essentially undisputed. In the present complaint, the "incorrect legal assessment" was even expressly asserted. It was therefore not apparent that the oral discussion would have led to further clarification of the legal matter or that the cancellation of the hearing would have been contrary to Article 6 Paragraph 1 of the ECHR or Article 47 of the Charter of Fundamental Rights. - 13 - The Federal Administrative Court therefore had to rule exclusively on a legal question (cf. ECHR 20.6.2013, Appl. No. 24510/06, Abdulgadirov/AZE, para. 34 ff). 3.7. The decision was therefore to be made in accordance with the ruling. B) Inadmissibility of the appeal:

According to Section 25a Paragraph 1 VwGG, the administrative court must state in its ruling or

decision whether the appeal is admissible in accordance with Article 133 Paragraph 4 B-VG. This

decision must be briefly justified.

The appeal is not admissible because the decision does not depend on the solution of a legal question

that is of fundamental importance. The adjudicating court could

on the one hand refer to the case law of the VwGH or ECJ cited in each case, on the other hand

an individual case-related assessment - as here - within the framework of the principles established by the highest courts

as to whether data processing is permissible in accordance with Article 6 Paragraph 1 Letter f

GDPR or whether the interests of the controller prevail, is not reversible.