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By Benjamin Pfaffenberger
WINHELLER Attorneys at Law & Tax Advisors
Frankfurt, Germany

The Federal Labor Court (Bundesarbeitsgericht; “BAG”) recently decided that employers must not monitor their employees using a so-called keylogger software, unless the employee is suspected of having committed a criminal offence or a serious breach of duty. A keylogger software captures all keystrokes that are typed on the keyboard and takes screenshots at regular intervals. According to the Federal Labor Court’s decision, such monitoring by the employer violates the privacy of the monitored employee.

Employee Dismissed After Evaluation of Keylogger Data

In the case decided by the Federal Labor Court, the employer dismissed a web developer. In its reasoning, the employer argued that the employee had spent considerable amounts of time using his business computer for private purposes, namely, for developing a computer game and treating e-mail traffic from his father’s company. The employer became aware of this by using a keylogger on the employee’s business computer. The employer had previously informed its staff that traffic would be logged. At that time, the employee, who was later dismissed, did not protest against this way of proceeding.

Infringement of the General Right to Privacy

The Federal Labor Court considered the dismissal to be ineffective. The court found itself legally prevented from taking into account knowledge gained through use of a keylogger. As this knowledge had been gained by violation of the employee’s right to self-determination regarding personal information, it could not be used for adjudication. Evidence obtained in this way is inadmissible.

No Protest Does Not Mean Consent

According to the Federal Labor Court, the use of a keylogger is not permitted under the Federal Data Protection Act (Bundesdatenschutzgesetz; “BDSG”). Because the employer had no concrete initial suspicion that the employee had committed a criminal offence or other serious breach of duty. The use of the keylogger was hence disproportionate. In addition, the employee never consented to the general logging and storing of data traffic. No protest against data logging could not be considered as an effective consent. This applies irrespective of whether the employer monitors employees openly or secretly.

Concrete Initial Suspicion Required

The Federal Labor Court’s decision is to be welcomed. Whether or not findings obtained by monitoring employees without cause may be used in court should be determined in the light of the principle of proportionality. With its decision, the Federal Labor Court stays true to its previous rulings. Interests must be balanced and proportionality examined in each individual case. The minimum requirement is a concrete initial suspicion of a criminal offence or other serious breach of duty on the part of the employee. So far, it is unclear whether or not this judicial practice will still apply once the new General Data Protection Regulation has come into force as of May 25, 2018.

In any event, you should always obtain legal advice if you have a concrete suspicion that an employee has committed a criminal offense so as to be sure to take effective measures to clarify the matter in a legally compliant way. We will be pleased to advise you. For further details, please do not hesitate to seek advice from our expert attorneys specializing in labor law. We will be pleased to assist you.