Is it permissible to monitor one’s spouse?

What happened?

The applicant and the respondent had been in a relationship for several years and had also been married since August 2019. However, on July 21, 2022, the applicant informed her husband that she wanted to separate. Since then, she had felt stalked and watched by him – for example, the respondent knew things about her life that he could not possibly have known. He said he knew these things through third parties.

Over the course of the following months, the applicant found a hidden video camera in the marital home and photo printouts of her smartphone files (call lists, contact information) in the respondent’s bag, without her ever having allowed him to make them. She also found an invoice for two surveillance cameras and four SD cards. Alarmed by the find, the applicant searched for more surveillance devices and found a tracking device in the trunk of her car. After a visit to the police, on September 10, 2022, the police imposed a no-entry order for the apartment building and issued a restraining order. One day later, the applicant also found a video recorder that had been placed under the radio of her car.

Respondent had placed these technological devices to monitor the applicant and obtain evidence of her alleged extramarital relationship to use in divorce proceedings.
The applicant suffered from anxiety about the respondent, went through a moderate depressive episode, and also suffered panic attacks.
The Court of First Instance issued the temporary restraining order requested by the applicant and prohibited the respondent from being in the former marital home and its immediate vicinity, from contacting and following the petitioner in person, especially by technical means, and from contacting her by letter, telephone, or other means. The respondent’s appeal was dismissed.

The Court of Appeal also rejected respondent’s appeal.

The respondent filed an extraordinary appeal against this decision with the Supreme Court (Oberster Gerichtshof, OGH).

What did the Supreme Court decide?

The Supreme Court did not consider the requirements for an extraordinary appeal to be met and therefore dismissed the appeal.

Specifically, it stated that in the case of interference with privacy, the infringer bears the burden of asserting and proving that it is acting in pursuit of a legitimate interest and that the measure is suitable or the mildest means to achieve the purpose. In the present case, by mounting the monitoring devices, the defendant took measures intended to achieve the maximum possible gap-free monitoring. Contrary to the respondent’s opinion, these measures are also not comparable to the hiring of a private detective. Moreover, the surveillance measures were also based on a mere presumption on the part of the defendant that his wife had broken the marriage.

Referring to its previous case law, the Supreme Court further stated that the conduct of the respondent constituted serious breaches of trust and intolerable invasions of privacy, which are by no means to be tolerated even in the context of pending divorce proceedings and thus make further cohabitation unreasonable for the petitioner.
The legal opinion of the lower courts, according to which both the prerequisites of Section 382d EO (anti-stalking) and – due to the fact that the applicant went through a moderate depressive episode and suffered panic attacks as a result of the systematic surveillance – those of Section 382c EO (general protection against violence) were not in need of correction, is therefore not objectionable.

(Decision OGH 7 Ob 38/23y of 22.03.2023)

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