Data Protection Authority on disclosure of trade union data

Feb 24, 2021 Benn-Ibler Rechtsanwälte

In the course of an appeal, the Austrian Data Protection Authority had to deal with the right to confidentiality under Section 1 of the Data Protection Act (Datenschutzgesetz, DSG).

In the present proceedings, the plaintiff was an employee of the defendant. The defendant, after terminating the plaintiff's employment, wrote a letter to her employees, her clients and the mayor informing them of the termination. The letter also disclosed the plaintiff's trade union membership.

The plaintiff's trade union affiliation is data that is entitled to special protection under Sec. 1 (2) DSG, according to which the principle of prohibition applies. In contrast, the defendant argued that the use of the data was based on the permissibility of Article 9(2)(e) of the GDPR and that the plaintiff herself had made her trade union membership public. Furthermore, the action had to be justified in order to avert a imminent threat of harm under Article 9(2)(f) of the GDPR. The threat of harm is a possible claim for damages.

According to the DPA, the exceptions in Art. 9 (2) of the GDPR must be interpreted narrowly. The facts according to lit e of the GDPR require an act of will on the part of the data subject. In this specific case, neither the fact that the plaintiff allowed herself to be photographed in public with members of the trade union, nor her activity as a works council member with the associated cooperation with the trade union, can be considered as a personal act of will for publication.

Furthermore, the legal claim under Art 9(2)(f) of the GDPR was also denied. The defendant had only expressed fears with regard to future claims for damages, but had not submitted any concrete legal claims.

Finally, the disclosure of the trade union affiliation was unlawful due to the lack of authorization under Article 9(2) of the GDPR. The complainant's right to confidentiality was infringed.

DSB-D123.431/0003-DSB/2018 (16.09.2020), Newsletter 1/2021