- The Federal Supreme Court confirms that a request for information is an abuse of rights if its sole purpose is to investigate the other party and obtain evidence.
- Whether a request for information is intended solely to clarify the prospects of litigation is decided by the substantive court on the basis of the motives, scope of the request and free assessment of evidence.
In its decision, which was not intended for official publication, the Federal Supreme Court had 4A_277/2020 of November 18, 2020 The Federal Supreme Court of Berne had to rule on a request for information that had been judged by the first instance (the Bernese Regional Court Oberland) as a “fishing expedition” to clarify the prospects of litigation. The Upper Court of the Canton of Berne (Obergericht BE) upheld the appeal of the claimants and ruled that there was no abuse of rights.
In essence, the BGer says the following:
- In principle, a request for information can be made without any special interests. However, it is subject to the prohibition of abuse of rights.
- According to established case law, there is an abuse of rights if a request for information is made for the sole purpose of finding out about a subsequent opposing party and obtaining evidence that a party could not otherwise obtain.
- In contrast to the cases judged earlier, the facts of the present case were that “the respondents were only pursuing the clarification of the prospects of litigation” with their request for information. Therefore, their request for information was an abuse of rights.
This ruling is interesting for several reasons:
- From a legal point of view, the ruling contains little that is new. It does, however, clarify that a request for information is only in abuse of rights if it is only serves to clarify the prospects for litigation. If it does so, but does not establish that it is no other (legitimate) purposes, it is not abusive of rights.
- Whether a request for information serves exclusively to clarify the prospects of litigation is decided by the factual court in its free assessment of the evidence. On the one hand, it must take into account what the The claimant makes any submissions in support of the request for information., and on the other hand, how the request for information is formulated is. The broader it is, the more likely it is that the purpose of the investigation is to be assumed (the Federal Supreme Court in the present decision in recital 5.4: “this motivation is also expressed in the scope of the request for information, which extends to all correspondence and documents (as far as concerning the respondents)”).
- The BGer expressly refers to Art. 25 para. 2 revFDPAwhich states that the claimant must be provided with the information “necessary to enable [the data subject] to assert his or her rights under this Act and to ensure transparent data processing”. This shows that the right to information pursues a specific purpose, namely the enforcement of the right to privacy. Thus, the present judgment the first ruling on the revised DPAand at the same time it is clear that this case law remains relevant even after the revDSG.
In the sense of a defense against pre-trial requests for information is affected companies should therefore be advised, to assert any exceptional circumstances within the meaning of Art. 9 DPA or Art. 26 revDSG and, above all, abuse of rights at an early stage in order to force the claimant to disclose his motives so that a decision can be reached on the merits. At the same time, the claimant should be advised to formulate the request for information correctly and to assert concrete interests in information that go beyond a search for evidence.
In detail:
Initially, it was undisputed before the Federal Supreme Court that the DPA was applicable and that the exclusion of application in pending civil proceedings pursuant to Art. 2 para. 2 lit. c DPA did not apply:
It [the Superior Court] has concluded that a civil action is then within the meaning of this provision “pending”, if it had been brought before a judicial body, at the latest upon the occurrence of the lis pendens as defined in civil procedure (Art. 62 CCP). The Federal Supreme Court has expressly rejected an extension of the term “pending civil proceedings” to the run-up to civil proceedings, in which information and evidence are collected and the prospects of a possible lawsuit are clarified. There is no reason to deviate from this case law.
It was also undisputed on the facts of the case that the disputed request for information had the “sole purpose of preparing civil proceedings and thus clarifying the chances of litigation”. In contrast, it was disputed whether the request for information was justified.
The BGer denies this. It proceeded from the Purpose of the right to information under both the DSG and the revDSG:
5.2. The right to information pursuant to Art. 8 FADP serves to enforce the protection of privacy. It allows the data subject to control the data processed about him or her in a third party’s data file with the aim of verifying and enforcing in legal reality compliance with the principles of data protection law, such as obtaining the data by lawful means and not in a manner contrary to good faith or ensuring the accuracy of the data and the proportionality of its processing (BGE 144 I 126 E. 8.3.7 P. 153; 138 III 425 E. 5.3). This instrumental character (BGE 120 II 118 E. 3b p. 123) also brings the formulation of Art. 25 para. 2 of the revised Federal Act on Data Protection of September 25, 2020, according to which the data subject shall receive such information “as is necessary to enable him or her to exercise his or her rights under this Act and to ensure transparent data processing” […].
According to established case law, the right to information can generally be asserted without proof of an interest. However, this means not that the motive of the request for information is irrelevant:
However, the requirement under Art. 9 of the FADP can be Weighing up the mutual interests require the person requesting information to explain his or her interests. In addition, the motive of a request for information with regard to a possible Abuse of rights (Art. 2 Para. 2 ZGB) is of importance (BGE 141 III 119 E. 7.1.1 P. 127; 138 III 425 E. 5.4 f.; each with further references).
The BGer also sets out the applicable standards for an abuse of rights when exercising the right to information:
According to established case law, abuse of rights is in particular the improper use of a legal institution for the realization of interests which this institute does not intend to protect (BGE 140 III 491 E. 4.2.4; 135 III 162 E. 3.3.1 p. 169 with further references). With reference to Art. 8 DPA, the Federal Supreme Court has stated that an abuse of rights is considered if the right to information is too purposes contrary to data protection for example, in order to save the costs of data procurement, which would otherwise have to be paid. One could also think of a vexatious exercise of rights without any real interest in the information, merely in order to damage the party obliged to provide the information. An improper use of the right to information under data protection law and thus an abuse of rights – according to the Federal Supreme Court – would probably also be assumed, if the request for information is made for the sole purpose of finding out about the (subsequent) other party and obtaining evidence that a party could not otherwise obtain. This is because the right to information under Art. 8 FADP is not intended to facilitate the obtaining of evidence or to interfere with civil procedural law (BGE 138 III 425 E. 5.5; cf. also BGE 141 III 119 E. 7.1.1).
However, in the specific case – in contrast to the earlier rulings – it was established that the request for information was Exclusively the clarification of process opportunities served, and this represents a disclose abuse of rights dar:
5.4 In BGE 138 III 425 and BGE 141 III 119 – as, incidentally, since then also in the not officially published judgment 4A_506/2014 / 4A_524/2014 of July 3, 2015 (E. 8.4.2) – the Federal Supreme Court denied an abuse of rights, since in each case an interest of the entitled party was recognizable to be able to check the data concerning it or its processing by the obligated party.
This is not the case here. On the contrary, it is established that with their request for information the respondents are only pursuing the clarification of the prospects of litigation. (see recital 5.1). As the complainants rightly submit, This motivation is also expressed in the scope of the request for information.which extends to all correspondence and documents (as far as concerning the respondents). The respondents do not claim thatthat they wish to verify the accuracy of this data or compliance with the data processing principles in order to bring claims based on the DPA, if necessary.
Under these circumstances, however, the respondents’ request for information represents a constitutes manifest abuse of the right; they make use of the right to information under data protection law for an improper purpose. If the Supreme Court assumed that Art. 8 DPA does not require an interest in data protection, but can also serve solely to clarify the prospects of litigation, it assumed an incorrect interpretation of the law.