When does GPS tracking violate privacy?
A sensational issue that the Supreme Court recently had to deal with is somewhat reminiscent of the dystopian classic "1984" by George Orwell. In this book everyone is monitored by the government around the clock - keyword "Big Brother is watching you". In the present Supreme Court case, however, the plaintiff was not monitored by officials, but by his superiors.
The plaintiff was employed by the defendant company in the field and was also allowed to use his company car for private trips. One day he found out by chance that his company car had been monitored against his will and until then without his knowledge. The managing director, the sales manager, the production manager and the back office manager could see the GPS data and the battery level of the car at any time and were also shown when the ignition was switched on. A supervisor often called the plaintiff and asked why he had left home so late. The plaintiff finally turned to the sales manager with the request to refrain from monitoring, especially or at least during leisure time. These and other verbal and written requests fell on deaf ears with the employer.
When the plaintiff was dismissed after about six months, he sought approx. EUR 1,000 in non-material damages in court per month in which he had worked for the employer. The first and second instance awarded him (only) EUR 400 per month, which was confirmed by the Supreme Court. The employer had unlawfully and culpably caused a serious breach of the plaintiff's privacy through the surveillance measures in his free time, which affected his human dignity.
Control measures - as in this case - are permitted, but only if they have been approved by a company agreement or employment contract and only during working hours.
Monitoring by the employer outside of office hours is - even with consent - unlawful in any case.
(OGH January 22, 2020, 9 ObA 120 / 19s)
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