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Data Protection Leader
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Volume: 14 Issue: 8
(August 2017)

Keywords:
employment employee monitoring internet

Jurisdictions:
germany

Germany: Bundesarbeitsgericht rules on keylog monitoring

The Federal Labour Court (‘Bundesarbeitsgericht’) issued, on 27 July 2017, its decision in an employment dispute regarding the termination of an employee's contract following data collected by his employer through keylogging software. In particular, the Bundesarbeitsgericht ruled that the use of keylogging software was unlawful under Section 32(1) of the Federal Data Protection Act 2003 (‘the Act’), given that the employer had no reason to believe that the employee had committed a criminal offence.

Dr. Marc Hilber, Partner at Oppenhoff & Partner, said, “The judgement is in line with the existing jurisprudence according to which full online monitoring (such as keylogging or video taping) is only permissible in extraordinary cases. Such a strong intrusion into the employee’s sphere of privacy requires a specific suspicion based on facts. Employers should therefore firstly establish a suspicion by [gathering facts]; attempt to apply less intrusive means to monitor the employee, such as background or other checks; and involve a data protection officer and/or workers’ council.”

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