Herbst Kinsky Rechtsanwälte GmbH

 

The following law(s) specifically govern personal data / information:

Regulation (EU) 2016/679 (General Data Protection Regulation – “GDPR”)

The principal data protection legislation in Austria (and the EU) is the GDPR, which replaced Directive 95/46/EC (“Data Protection Directive”). The GDPR intends to increase the harmonisation of data protection law across the EU Member States.


Austrian Data Protection Act (Datenschutzgesetz – “DSG”, last amended by BGBl. I Nr. 14/2019)

The Data Protection Adaptation Act 2018 (Datenschutzgesetz-Anpassungsgesetz 2018), published in the Federal Law Gazette (Bundesgesetzblatt– “BGBl.”) I Nr. 120/2017, amended the former Data Protection Act 2000 (Datenschutzgesetz 2000) in accordance with the GDPR and entered into force on 25 May 2018 as the DSG.

Furthermore, Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, was implemented into the DSG by the Data Protection Adaptation Act 2018.


Impact of labour law on data protection

The DSG does not contain a systematic regulation of data protection in the context of employment, the principal legislation on data protection in this context therefore being the Austrian Labour Constitution Act (Arbeitsverfassungsgesetz – “ArbVG”; in particular, sections 96 and 96a ArbVG). With regard to employee data protection, the relevant provisions of the ArbVG apply in addition to the GDPR and the DSG. For certain data processing activities (e.g. the implementation of control systems such as whistle-blowing mechanisms), the consent of the works council is mandatory.

Sector-specific legislation

The Telecommunications Act (Telekommunikationsgesetz 2003, containing the implementation of Directive 2002/58/EC, as amended – “TKG”) contains the implementation of the EU Data Protection Directive on Electronic Communications (e.g. provisions regarding commercial electronic communication, cookies).

Finally, other numerous relevant laws contain specific provisions on data protection, for example the Austrian Research Organization Act ("FOG" – Forschungsorganisationsgesetz). The amendments to the individual substantive laws required by the GDPR were made in the First and Second Data Protection Adaptation Act 2018 (1. Materien-Datenschutz- Anpassungsgesetz 2018, BGBl. I Nr. 32/2018; and 2. Materien-Datenschutz- Anpassungsgesetz 2018, BGBl. I Nr. 37/2018).

The key data protection principles in this jurisdiction are:

Lawful basis for processing

The GDPR provides an exhaustive list of legal bases on which personal data may be processed:

  1. consent of the data subject for one or more specific purposes;
  2. contractual necessity;
  3. compliance with a legal obligation of the controller to perform the relevant processing;
  4. protection of the vital interests of the data subject or of another natural person;
  5. performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
  6. legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).

The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:

  1. explicit consent of the affected data subject;
  2. the processing is necessary in the context of employment or social security law; or
  3. the processing is necessary for the establishment, exercise or defence of legal claims.
Transparency

Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.


Purpose limitation

Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.


Data minimisation

The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.

Accuracy

Personal data must be accurate and, where necessary, kept up to date.


Storage limitation

Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.

Integrity and confidentiality

Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.


Accountability

The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.


The supervisory authority / regulator in charge of data protection is:

The national competent supervisory authority in Austria is the Datenschutzbehörde (“DSB”).

The Data Protection Council (Datenschutzrat) is responsible for advising the Federal Government and the State Governments on requests concerning data protection law.

 

Is there a requirement to register with a supervisory authority / regulator?

Prior to the entry into force of the GDPR, notification and approval obligations for processing activities (with exceptions) existed in Austria; however, these ceased to apply as of 25 May 2018.

 

Is there a requirement to notify the supervisory authority / regulator?

No.

 

Is it possible to register with / notify the supervisory authority / regulator online?

Not applicable.

 

The key data subject rights under the data protection laws of this jurisdiction are:


Right to information

Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.


Right of access

A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.

Additionally, the data subject may request a copy of the personal data being processed.


Right to rectification of errors

Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.


Right to deletion/right to be forgotten

Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reason as listed in Article 17 GDPR apply.


Right to restriction of processing

Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.


Right to data portability

Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format, and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).


Right to object to processing

Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.


Right to withdraw consent

A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.


Right to complain to the relevant data protection authority(ies)

Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.


Right not to be subject to automated individual decision-making

Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significantly effects for the data subject (Article 22 GDPR).


Is there a requirement to appoint a data protection officer (or equivalent)?

The appointment of a data protection officer for controllers or processors of the private sector is only mandatory if their core activities include:

  1. large-scale regular and systematic monitoring of individuals; or
  2. large-scale processing of sensitive personal data.

Failure to comply with an obligatory appointment of a data protection officer may result in penalties available under the GDPR. In particular, the controller or processor is subject to an administrative fine of the higher of up to EUR 10 million or 2% of the annual turnover of the respective controller (Article 83 para 4 GDPR).

The voluntary appointment of a data protection officer requires mandatory compliance with the GDPR requirements.

The contact details of the designated data protection officer must be communicated to the data protection authority by the controller or processor.

 

Do data protection/ privacy impact assessments need to be carried out in certain circumstances?

Pursuant to Article 35 GDPR the controller is obliged – prior to the processing – to carry out a data protection impact assessment ("DPIA"), where the type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.

Pursuant to Article 35 Para 4 GDPR, the DSB has established and made public a list of processing activities which are subject to a DPIA (Blacklist, published in the Federal Law Gazette BGBl II Nr. 278/2018). The Blacklist is divided into two sections:

The first section contains six criteria. The fulfilment of one of these criteria already leads to the mandatory implementation of a DPIA. These criteria are (i) processing that involves an assessment of individuals and is based solely on automated decision-making; (ii) processing concerning the behaviour or personal aspects of an individual for the purpose of automated decision-making; (iii) certain CCTV surveillance including audio recording; (iv) the use of new technologies whose consequences cannot yet be sufficiently assessed (e.g. the use of artificial intelligence); (v) certain types of processing based on a combination and merging of different data processing operations; and (vi) processing operations in the highly personal sphere of individuals, even if the processing is based on their consent.

The second section of the Blacklist contains five criteria. The fulfilment of two or more of these criteria lead to the mandatory implementation of a DPIA. These criteria are (i) the extensive processing of special categories of data pursuant to Article 9 GDPR; (ii) the extensive processing of special categories of data pursuant to Article 10 GDPR; (iii) the processing of location data pursuant to Section 92 Para 3 No 6 TKG; (iv) the processing of data of vulnerable data subjects, such as minors, employees, patients, mentally disabled individuals, and asylum seekers; (v) the processing that results from the combination of data sets from two or more data processing activities in a form that the data subject could not have expected and where not all of the data has been collected directly from the data subject.

 

Does this jurisdiction have any specific data breach notification requirements?

The controller is obliged to report a personal data breach to the relevant data protection authority, unless the breach is unlikely to result in a risk to the rights and freedoms of the data subject(s).

Furthermore, the controller is obliged to communicate the breach to the data subject, if the breach is likely to result in a high risk to the rights and freedoms of the natural persons. If the controller is in default with such obligation, the competent authority may require the controller to inform the data subject.

The controller may be exempt from notifying the data subject if the risk of harm is remote (e.g. because the affected data is encrypted), the controller has taken measures to minimise the risk of harm (e.g. suspending affected accounts) or the notification requires a disproportionate effort (e.g. a public notice of the breach).

If the controller is obliged to report a personal data breach to the competent authority or/and the data subject, it shall contact them in both cases without undue delay (and in case of the notification to the authority within 72 hours of first becoming aware of the breach).

A processor must notify any data breach to the controller without undue delay. The notification must include a description of the nature of the personal data breach including the categories and number of data subjects concerned, the name and contact details of the data protection officer or relevant point of contact, the likely consequences of the breach and the measures taken to address the breach, including attempts to mitigate possible adverse effects.

The EDPB (European Data Protection Board) has issued guidelines on the data breach notification, detailing requirements for data breach notifications (Guidelines 01/2021 on Examples regarding Data Breach Notification).

 

The following restrictions apply to the international transfer of personal data / information:

International Data transfers (i.e. jurisdictions outside the European Economic Area (“EEA”)) can only take place if the transfer is subject to an “Adequacy Decision” or the recipient has implemented certain safeguards required by the GDPR:

The EU Commission has issued decisions concerning an adequate level of protection on the basis of Article 45 para 3 GDPR for the following countries: Andorra; Argentina; Canada; Faroe Islands; Guernsey; Isle of Man; Israel; Japan; Jersey; New Zealand; Switzerland; and Uruguay.

For a data transfer to all other countries the controller is obliged to ensure compliance for international data transfers:

  • -The transfer may be based on the consent of the relevant data subject.
  • -The transfer may be based on Standard Contractual Clauses (“SCCs”). The SCCs, drafted by the EU Commission, may be adopted by controllers and processers. SCCs are available for transfers among controllers, and for transfers between a controller (as exporter) and a processor (as importer).
  • -The transfer may be based on contracts agreed between the data exporter and data importer provided that they meet the protection standards outlined in the GDPR. Additionally, prior approval by the relevant data protection authority is key.
  • -The transfer may be based on Binding Corporate Rules (“BCRs”), in particular within a group of entities. For BCRs prior approval by the relevant data protection authority is needed. Most importantly, the BCRs need to include a mechanism to ensure they are legally binding and enforced by every member in the group of entities.

 

Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?

With regard to its geographic scope, the GDPR combines the principles of establishment, market place and territoriality.

Pursuant to the principle of establishment, the GDPR is applicable for processing activities carried out in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing itself takes place in the EU.

Pursuant to the principle of the market place, the GDPR is applicable for the processing of personal data of data subjects situated in the EU by a controller or processor who is not situated in the EU, where the processing activities are related to (i) the offering of goods or services to such data subjects situated in the EU, irrespective of whether a payment of the data subject is required; or (ii) the monitoring of their behaviour as far as their behaviour takes place within the EU (principle of the territoriality).

 

The following rules specifically deal with marketing:

With regard to direct marketing (Direktwerbung), section 107 TKG contains specific rules: Telephone calls and electronic mail (including SMS) are not permitted without the recipient’s prior consent, if direct marketing is the only purpose for the communication. The sending of mail for marketing purposes, on the other hand, is not subject to the recipient's consent. The processing of personal data for direct marketing purposes by mail is considered as processing serving a legitimate interest (Article 6 Para 1 lit f GDPR).

 

Do different rules apply to business-to-business and business-to-consumer marketing?

The restrictions concerning (electronic) marketing (please see below) apply to business-to-consumer marketing as well as in a business-to-business context.

 

The following rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc):

The sending of electronic mail or SMS for purposes of direct marketing requires the recipient’s prior consent (section 107 para 2 TKG).

Such prior consent is not required if:

  • contact details for the communication were obtained in the context of a sale or a service to the recipient;
  • the communication is transmitted for the purpose of direct marketing of similar products or services of the sender;
  • at the time the electronic contact information was collected and furthermore on the occasion of each contact, the recipient has been given the opportunity to object, free of charge and in an easy manner, to such use of his/her electronic contact details; and
  • the recipient did not register in the “Robinson List” (section 7 para 2 Austrian E-Commerce Act (E-Commerce-Gesetz – "ECG").

 

The following rules specifically deal with cookies:

Pursuant to Article 5 of the EU ePrivacy Directive, the storage of cookies (or other data) on an end user’s device requires prior consent.

Article 5 of the EU ePrivacy Directive has been implemented in section 96 para 3 TKG, distinguishing between:

  1. cookies serving the sole purpose of carrying out the transmission of a communication via an electronic communications network or necessary to provide an “information society service” requested by the subscriber or user, which do not require the consent of the user, and
  2. any other cookies, which require the consent of the user.

Pursuant to legal prerequisites established by the CJEU (Planet49, C-673/17), consent to the use of cookies containing personal data as described has to be explicit opt-in consent.

 

The consequences of non compliance with data protections laws (including marketing laws) are:

The GDPR provides for a maximum penalty in the amount of the higher of EUR 20 million or 4% of worldwide turnover (Article 83 GDPR).

The infringement of section 107 para 1 TKG (as described above) constitutes an administrative offence that is punishable by a fine of up to EUR 58,000.

The infringement of section 107 para 2 TKG (as described above) constitutes an administrative offence that is punishable by a fine of up to EUR 37,000.

In the case that the specific marketing communication infringes the GDPR (e.g. data being used without compliance with Article 6 or Article 9 GDPR), the GDPR sanctions apply.

 

In broad terms, multinational organisations should be aware of the following key factors if they process personal data / information from individuals within this jurisdiction, without being located there:

No unique factors.

 

Multinational organisations should be aware of the following upcoming data protection developments:

Currently, no new legislative measures are expected. However, many new situations and questions (also) with regard to data protection have arisen in the context of the COVID pandemic, such as regarding data protection issues in the context of vaccination or tests, which might face clarification by the authorities.

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Sonja Hebenstreit
Herbst Kinsky Rechtsanwälte GmbH
Vienna, Austria


Beatrice  Bluemel
Herbst Kinsky Rechtsanwälte GmbH
Vienna, Austria