As competition among enterprises intensifies, it is not uncommon for companies to seek ways to “monitor competitors’ movements,” “verify whether former employees have been poached,” or “collect evidence of potential unfair competition”, among others. As a result, corporate decision-makers may ask whether engaging private investigation agencies to look into competitors or former employees is an effective, expedient, and discreet means of gathering intelligence. However, a series of recent controversies involving surveillance, tracking, and covert filming has brought a critical issue to the forefront of Taiwanese society: in pursuing competitive advantage, are companies at risk of crossing legal and reputational lines?

To begin with, the legal status of evidence-collecting by private investigators is frequently misunderstood by corporate managers. While private investigation is a lawful industry in Taiwan and engaging an investigation firm is not illegal per se, such firms are not “investigative agencies” with public authorities, nor are they granted special powers under laws such as the Investigation Bureau Act or the Code of Criminal Procedure. Thus, private investigators do not possess any legally recognized “special investigative authority.” They may only do what an ordinary member of the public may lawfully do. The risks associated with illegal evidence collection should not be underestimated: not only may criminal liability arise, but unlawfully obtained evidence may also be inadmissible in judicial proceedings. The assumption that commissioning a private investigator allows a company to “legally” track or monitor a competitor’s whereabouts and/or activities is therefore a serious misconception.

In practice, when companies hire private investigators to conduct surveillance, tracking, or filming, such conduct may violate applicable laws and expose the company to legal liability. For example, under the Personal Data Protection Act, “location trajectory data” and “movement records” constitute personal data. For a non-government entity to collect such personal data, a specific and lawful purpose must exist, and the collection must be based on statutory grounds such as explicit legal authorization, a contractual relationship, academic research, the data subject’s consent, necessity for public interest, data obtained from publicly available sources, or absence of infringement on the data subject’s rights and interests. In this context, companies generally cannot rely on a “legitimate purpose” to collect competitors’ tracking data. As such, surveillance, tracking an individual’s movements, or recording their visits to specific locations lack a clear statutory basis, and cannot be justified by vague claims such as reasonable commercial interests, operational needs, or market intelligence gathering.

Accordingly, when private investigators, acting on a company’s instructions, improperly collect location or movement data, they may be found in violation of the Personal Data Protection Act and bear corresponding legal responsibility. And if a company is aware that the investigator will collect data via employ covert filming, secret recording, or other unlawful means, yet still pays fees, provides equipment, or gives instructions regarding the collection of specific individuals’ data, the company may be deemed a joint principal offender or an aider. In such circumstances, liability cannot simply be shifted to the investigator, and the criminal risks are substantial.

Moreover, the Civil Code provides that, a person who unlawfully infringes upon another’s rights is liable for damages, and the right to privacy is recognized as a protected right. Even in the absence of property loss, the injured party may claim monetary compensation for non-pecuniary damages, commonly referred to as emotional distress compensation. Where multiple parties jointly infringe upon another’s rights, they are jointly and severally liable to the injured party. Thus, if a company commissions a private investigator to engage in unlawful surveillance or personal data collection and subsequently acts on the results in a manner that alerts the affected individual, the company may be held jointly liable with the investigator for damages.

In reality, disputes arising from corporate evidence-gathering are increasingly being resolved through civil litigation. Victims need only assert infringement of privacy or harm to reputation to potentially obtain compensation for emotional distress. Courts often characterize companies and private investigators as “joint perpetrators.” From a corporate perspective, even if criminal proceedings ultimately result in a decision not to prosecute, civil claims and reputational damage may still be unavoidable.

In light of these risks, companies are advised to adopt a compliance-oriented approach to competition, starting with risk management and evidence preservation. First and foremost, companies should recognize that the legal and public relations risks associated with unlawful surveillance—such as tracking movements, collecting location data, or covertly filming—far outweigh any potential commercial benefits. Where there is a genuine suspicion of unfair competition, companies should pursue lawful channels and work with internal compliance, legal, and information security teams, as well as external counsel, to design evidence-gathering strategies that are legally compliant. Only by doing so can companies protect their competitive interests while avoiding inadvertent violations of the law.

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This article was published in the Expert’s Commentary Column of the Commercial Times. https://www.ctee.com.tw/news/20251202700126-439901

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