Discussion of the ruling: Right to information under the DPA for the purpose of clarifying one's own litigation prospects - extension to employment law matters?
In ruling BGer 4A_277/2020, the Federal Supreme Court ruled that the assertion of the right to information under Art. 8 DPA for the purpose of clarifying the prospects of litigation is an abuse of rights and must therefore be rejected. The question arises as to how this decision will affect areas other than corporate law, namely employment law disputes.
Facts and history of the process
The starting point of the aforementioned ruling was a legal dispute between a stock corporation or its board of directors and four investors who had made several transactions with the stock corporation. The investors then demanded that the company provide information and hand over all data relating to them, based on Art. 8 DPA. The company refused to provide them with the information. The investors then sued the company for the release of their personal data.
The Regional Court of Oberland dismissed the claim. It justified its ruling by stating that the plaintiffs wanted to make a "fishing expedition" by asserting their right to information in order to obtain evidence to be able to make substantiated claims in a possible lawsuit. It therefore considered the request for information to be contrary to purpose and an abuse of rights.
The plaintiffs appealed against this ruling to the Supreme Court, which upheld the appeal. It argued that the exercise of the right to information under Art. 8 DPA does not necessarily require an interest in data protection, which is why the clarification of one's own litigation prospects is also considered a legitimate reason. There was therefore no abuse of rights and no overriding interest of the company in the denial or restriction of the right to information.
The Company again appealed against this decision to the Federal Supreme Court. The Federal Supreme Court upheld the appeal.
Considerations of the Federal Supreme Court
The Federal Supreme Court considered that the right to information under Art. 8 DPA serves to enforce the protection of privacy. In doing so, it relied on the dispatch on the revised Data Protection Act of 25 September 2020, which will enter into force on 1 September 2023. According to Art. 25 (2) revDSG, the data subject will only receive the information that is necessary to enable him to assert his rights under this Act and to ensure transparent data processing.
According to the established case law of the Federal Supreme Court, there is an abuse of rights, in particular if a legal institution is used for an improper purpose in order to achieve interests that are not supported by this institution. Based on this definition, the Federal Supreme Court also considers an abuse of rights to be present if the request for information is made for the sole purpose of investigating the other party and creating evidence that the data subject could not otherwise obtain. On this basis, the investors' request for information under data protection law was to be dismissed for abuse of rights.
Implications for labor disputes?
In disputes between employees and employers, it is standard procedure for the legal representation of the employee to first submit a request for information to the employer based on Art. 8 DPA in order to obtain the employee's entire personnel file. In the event of a directly analogous application of the relevant Federal Court decision, which assesses an issue under company law, the handover of the personnel dossier could, however, be refused by the employer in the future. However, it should be noted that the disclosure of the personnel file is not only based on the DPA, but also on Art. 328b OR, which serves to protect the personality of the employee. The accusation of "fishing expedition" could therefore regularly be countered by the fact that the information is not (only) for the purpose of weighing up the prospects of litigation, but also for the protection of the employee's personality. It remains to be seen how case law will deal with this issue, especially with the entry into force of the revised Data Protection Act.
If you have any questions regarding data protection law and employment law, please contact Sven Kohlmeier and Arife Asipi.