WhatsApp conversation leaked without authorization leads case to Germany's highest court

The messages had been exchanged three years ago. In them, the complainant, who worked in a doctor's office, complained about her boss to a friend. After the friendship ended, the messages ended up reaching the boss's wife, who also worked in the office, taking care of the administrative side. Shortly afterwards, the employee was fired. The court in the first instance won the case for the fired woman, but the decision was reversed in the second instance. The woman appealed and, this Thursday (30/07), the case began to be analyzed at the German Federal Court of Justice (BGH), the highest instance of German common justice. What did the first instance decide? The Frankfurt Regional Court of first instance sentenced the friend who forwarded the messages to pay 7,500 euros in compensation. In the court's understanding, the GDPR exception did not apply to the case, as the defendant deliberately shared her ex-friend's data with a person close to her employer. The defendant claimed that she wanted to "protect" the practice. Thus, the referral would also be linked, at least in part, to the employer's commercial interests. There would therefore be a relationship with an economic activity, which is why the exception for data shared within the scope of private life could not be applied, the court concluded. What did the second instance decide? The Frankfurt Higher Regional Court reached a different conclusion when considering an appeal by the defendant. The court rejected the action, stating that the GDPR does not apply to the case, as the forwarding of the messages was not related to the defendant's professional or economic activity. The professional relationship between the complainant and the employer would be irrelevant to this analysis, even if the defendant had acted impelled by the desire to cause her ex-friend to be fired. In the assessment of the Superior Regional Court, neither the right to protection of private life, guaranteed by the German Constitution, would justify a claim for compensation. The court recognized that the defendant unlawfully and intentionally interfered in the private sphere and possibly even in the privacy of the complainant, but alleges that the violations found would not be serious enough to justify the compensation sought in court. Furthermore, the complainant had already obtained a formal declaration by which the defendant committed not to repeat the conduct, under penalty of a fine. For the court, this represents sufficient compensation. What's at stake? The case follows two very distinct legal lines, summarizes Niko Härting, from the German Lawyers Association. "One of them is the right to data protection and the other is the right to personality", explained the lawyer specializing in information technology law to the dpa news agency. In the context of data protection, the central question is how the exception to private life in the GDPR should be interpreted: "Should the motivation of those who forward the chats be considered exclusively or is it enough that the recipient can use them in a professional context?". According to Härting, there is little jurisprudence from either the German Federal Court of Justice or the Court of Justice of the European Union (CJEU) on the interpretation of this exception. Therefore, he considers it possible for Karlsruhe judges to consult first with the CJEU, which is the highest authority for interpreting European laws. The case could create an unprecedented legal precedent, as the CJEU has never analyzed the GDPR in the context of messaging apps. In a 2014 case, a man in the Czech Republic was reprimanded by the CJEU for keeping a surveillance camera on his property that also captured what was happening on the sidewalk. The court's argument was that the images went beyond the defendant's private sphere and invaded the public area. Currently, the CJEU is also analyzing another case involving the application of the GDPR in private contexts: that of a mother who sued her daughter and son-in-law for having filmed her with a hidden camera inside their home. The expectation is that the two cases will not be judged before September. WhatsApp gains usernames and will dispense with numbers to start conversations France approves ban on social networks for children under 15; measure is unprecedented in the EU