The use of a software keylogger to record all keystrokes on an official computer for the purpose of covert surveillance and monitoring of the employee is not permissible under section 32(1) of the BDSG if there is no suspicion of a criminal offence or other serious breach of duty related to the employee and substantiated by concrete facts.
The plaintiff had been employed by the defendant as a "web developer" since 2011. In connection with the release of a network, the defendant informed its employees in April 2015 that all "internet traffic" and the use of its systems would be "logged". It installed software on the plaintiff's work PC that logged all keystrokes and regularly took screenshots. After evaluating the files created with the help of this keylogger, a conversation took place with the plaintiff. In this conversation, he admitted that he had used his company PC privately during working hours. When asked in writing, he stated that he had only programmed a computer game to a small extent and usually during his breaks and had handled e-mail traffic for his father's company. The defendant, who could assume from the data material recorded by the keylogger that the plaintiff had carried out private activities at the workplace to a considerable extent, terminated the employment relationship with immediate effect, alternatively with ordinary notice.
The lower courts upheld the action for unfair dismissal. The defendant's appeal before the Second Senate of the Federal Labour Court was unsuccessful. The information about the plaintiff's private activities gained through the keylogger may not be used in court proceedings. By using the keylogger, the defendant violated the plaintiff's right to informational self-determination, which is guaranteed as part of the general right of personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law). The collection of information was not permissible under § 32 (1) BDSG. The defendant had no factual suspicion of a criminal offence or another serious breach of duty when it used the software against the plaintiff. The measure initiated by the defendant "out of the blue" was therefore disproportionate. With regard to the private use granted by the plaintiff, the Regional Labour Court assumed without error of law that this did not justify the dismissals in the absence of a prior warning.
Federal Labour Court, Judgment of 27 July 2017 - 2 AZR 681/16
Previous instance: Regional Labour Court HammJudgement of 17 June 2016 - 16 Sa 1711/15 -
Source: Press release of the Federal Labour Court of 27.07.2017
GoldbergUllrich Attorneys at Law 2017
