The Federal Supreme Court made a marginal statement on a data protection issue in a tenancy law dispute (4A_105/2024 of August 19, 2024). The case concerned a complaint that had been successful before the OGer ZH that a change to a rental agreement for a municipal apartment – the plaintiff would have earned too much with this change to be able to remain a tenant of the apartment – should be annulled as invalid or abusive. The BGer upheld the appeal, thus protecting the amendment.
Part of the amendment was a clause on the obligation to provide information and an authorization to provide information so that the landlord can obtain the necessary information, which the BGer considers to be legitimate, also from a data protection point of view:
The collection and processing of data is also lawful under the provisions of federal data protection law. There is a justification according to Art. 31 para. 2 lit. a FADP exists. The data processing is necessary in direct connection with the execution of the contract and is therefore in the overriding interest of the complainant […]. […] It is irrelevant whether there is a general duty to provide information between contracting parties under private law. […] Finally, the fulfillment of the contract is a solid justification even when it comes to the processing of data despite objection […].
- The BGer deals with the Justification of the contractual context (Art. 32 para. 2 lit. a FADP) not as an indication, but like a legal basis. Conceptually, the elements of Art. 32 para. 2 FADP are neither fictions nor presumptions, but merely – but nonetheless – guidelines for weighing up interests. When the Federal Supreme Court says that the fulfillment of the contract is a “solid justification” even in the event of an objection, it can hardly be contradicted. Nevertheless, a balancing of interests would have to be carried out – the objection as such may be irrelevant, but the interests worthy of protection that may be expressed therein are certainly relevant.
- The Federal Supreme Court makes short work of the issue of data protection – that’s true, but after reading foreign case law, it’s a good thing.
- The reference to the general duty to inform does not refer to the duty to inform under data protection law, but to a – negated – duty under civil law to inform the contractual partner. It cannot therefore be inferred from the ruling that a breach of the duty to inform under Art. 19 et seq. FADP does not affect the lawfulness of the processing (which of course it does not).
The OGer ZH had still upheld the action, also from a data protection point of view; however, this was not because it had taken a different view to the BGer, but because it considered the amendment to the contract to be void under civil law, which is why the corresponding data procurement had to be disproportionate – because it had no consequences.