BVwG - W274 2224363-1

BVwG - W274 2224363-1
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 1 GDPR Article 4 GDPR Article 6 GDPR Article 9 GDPR Article 85 GDPR §1 (1) DSG §9 DSG §24 DSG §133 (4) B-VG
Decided:	20.11.2020
Published:
Parties:
National Case Number/Name:	W274 2224363-1
European Case Law Identifier:	ECLI:AT:BVWG:2020:W274.2224363.1.00
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Rechtsinformationssystem des Bundes (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Austrian Federal Administrative Court (BVwG) held that publicly available data is not per se exempt from personal data protection. The assessment of whether protection should be granted in a given case to personal data accessible to the public which are subsequently published elsewhere must take into account the purpose of the further use of the personal data.

It must also be considered whether the further use of the data is necessary to achieve the other purpose. Thus, the Court found that the publication of a post on Facebook about prison conditions was unrelated to the purpose for which the court guard's data was published on a website containing officials' details and functions.

English Summary

Facts

The complainant is an officer of the court guard. The co-participant was in prison and had contact with the complainant there. After his release from prison, the co-participant made public statements in the media and mentioned, inter alia, the complainant's details. In particular, in a Facebook post he mentioned the name and function of the complainant in connection with his trade union affiliation, which revealed the political views of the complainant. It is not known how the co-participant had information about the complainant's trade union affiliation.

The complainant lodged a complaint with the supervisory authority. The co-participant requested that it be dismissed, pointing out that his statements related to journalistic activities, which fall under the exceptions for the protection of personal data.

The DPA concluded that it was not possible to establish a link between the Facebook post and the co-participant's journalistic activity, but the authority did not grant protection to the complainant's rights. It pointed out that the interests of the co-participant stood above the interests of the applicant, since the Facebook post concerned prison misconduct and the co-participant had acted within the framework of freedom of expression. In addition, the applicant's personal data had been published on a publicly accessible website, so the co-participant had not gained access to them unlawfully.

The applicant appealed to the court.

Holding

The Court upheld the appeal and held that the content published by the co-participant on Facebook infringed the applicant's right to protection of personal data. The court ordered that the content be removed from Facebook.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

IN THE NAME OF THE REPUBLIC!

The Federal Administrative Court, by Judge LUGHOFER as Chairman and the expert lay judges Prof. KommR POLLIRER and Dr. GOGOLA as Associate Judges, rules on the complaint of XXXX , judicial guard officer, per address JA XXXX , represented by Dr. Michael Subarsky, Rechtsanwalt, Tuchlauben 14, 1010 Vienna, against the decision of the data protection authority, Barichgasse 40-42, 1030 Vienna, of 09.09.2019, GZ DSB-D 124.274/0007-DSB/2019, co-participant XXXX , XXXX , represented by Gheneff-Rami-Sommer Rechtsanwälte OG, Johannesgasse 18, 1010 Vienna, on the grounds of infringement of the right to confidentiality, after public oral proceedings:

The complaint is upheld and the contested decision is amended to the effect that the decision reads as follows. 1:

(1) The complaint is upheld and it is stated that the content of the publication by the co-participant XXXX, "Special thanks go to Mr XXXX of the XXXX . From him I had the "input" to take action against the abuses in the JV- XXXX" on his Facebook page (profile XXXX ) of 6 February 2019, violates section 1 para. 1 of the Data Protection Act (right to confidentiality).

The MB XXXX is ordered to delete the content mentioned under point 1 from its Facebook page within 14 days.

The appeal is not admissible pursuant to Art. 133 para. 4 B-VG.



Text

Grounds for decision:

By - lawyer's - complaint to the data protection authority (hereinafter: the authority concerned) of 26 February 2019, XXXX (hereinafter: the complainant, BF) requested that the authority concerned establish a violation of his rights. The complainant was a judicial guard and worked at the JA XXXX. In this function he had also had dealings with XXXX (hereinafter: co-perpetrator, MB). After his release from prison, the MB, beginning in January 2019, had publicly stated in television interviews, among other things, that only a XXXX trade unionist had secreted him and had flexed his muscles. The MB's public appearances had culminated in a Facebook post dated 06.02.2019 in which the BG stated, inter alia, "Special thanks to Mr XXXX of the XXXX ...". There was no indication that this private Facebook posting was related to a journalistic activity of the MB. The exceptional provisions of § 9 of the Data Protection Act and Art. 85 of the GDPR are not applicable. The Facebook posting disclosed personal data of a public security body acting in an official capacity; in particular, the naming of the BF in connection with his trade union affiliation encroached on personal rights and disclosed a political opinion contrary to the obligation of secrecy under section 1 of the FADP. The MB's Facebook page had a circulation of tens of thousands of followers, so that personal circumstances of the AA were unlawfully disclosed to a broad public. The name and rank were deliberately mentioned in order to create a link to the insinuations and accusations made in the television interviews. It was also incomprehensible how the MB obtained information about the BF's trade union affiliation, especially since he was not a member of a judicial body.

Attached were printouts of links to television interviews from XXXX and 22.02.2019 as well as a screenshot of the Facebook posting from 06.02.2019.

In a - lawyer's - statement of 22.03.2019, the MB requested that the application be dismissed and argued that he was the publishing director and journalist of the magazine XXXX, whose articles were also available online. He was responsible for the dissemination of the corresponding content via the XXXX website and a Facebook page in his name. The linking of the two online channels was evident from the links on the MB's Facebook page to articles on XXXX as well as the ongoing daily reporting. The MB's Facebook page - like the XXXX website - thus served journalistic purposes, in particular the dissemination of information. In addition to extensive political and general social criticism, the MB had published the incriminated content as additional information on an article of "oe24.at" linked on the Facebook page, in which an interview with the MB had been published in which he spoke about abuses in the prison. In the information on the link - but not in the interview - the BF was named with his political affiliation to XXXX ( XXXX ). The Facebook posting referred to was embedded between links to XXXX and other "information-oriented links".

The BF also appeared officially on the internet in his function as a judicial guard. In addition, as can be seen on his group's website, he is the deputy chairman of FA XXXX at the XXXX of XXXX. The MB was the media owner of his Facebook page within the meaning of section 1(1)(8)(c) of the Media Act. § Section 9(1) of the Data Protection Act implements the "media privilege" of Art. 85 GDPR and leads to the non-applicability of Chapters II, III, IV, V, VI, VII and IX of the previous search term Data Protection Act for media owners when using personal data for journalistic purposes. Section 9(1) of the FADP did not provide for a further weighing of interests as in Art. 85 GDPR. The posting was therefore made by the MB as media owner for journalistic purposes, which is why the complaint was unjustified. Even a direct application of Art. 85 GDPR search term would lead to the same result. The balancing of interests to be carried out according to this would be to the disadvantage of the BF, as he himself appeared in public with his political function. The data in question had already been made public by the AA by way of his right to informational self-determination, whereby he had voluntarily waived the confidentiality interest to which he was entitled.

Enclosed were excerpts from websites, in particular the XXXX as of 20.03.2019.

In the BF's statement of 17 April 2019, the BF denied that the MB's Facebook profile and the posting gave any indication of journalistic activity on the part of the MB. He also denied that the data protection violations complained of were connected to the MB's journalistic activities. It was a matter of private discrediting and inadmissible publication of data. The content of the posting was solely motivated by the desire to discredit the BF as a "XXXX functionary". The functions of the union were only relevant to members. It was not a public political office. The MB disclosed his name, rank, political orientation by referring to his union membership or functions and his office. The disclosure of the BF's highly personal data was in no way connected to the alleged abuses in JA XXXX denounced by the MB as a journalist. The MB did not dispute the content of the publication. The invocation of section 9 of the Data Protection Act was unjustified.

In a further statement by the MB dated 23 July 2019, the MB reiterated its factual and legal opinion. A restriction in Section 9 (1) of the Data Protection Act to media companies or media services within the meaning of the Media Act is contrary to European law. This also included "citizen journalism". In the JA XXXX there had been massive grievances such as mould, leaky windows and poor water quality. During his imprisonment, the MB had had a conversation with the BF, who had suggested exposing these grievances, which the MB had then successfully done. Since the AA, as a political functionary of the XXXX trade union group, appeared publicly on the internet and had made the aforementioned suggestion to the MB to make the grievances public, it was also appropriate to inform the readers of the Facebook profile of this. The BF was not associated with anything detrimental in the incriminated posting, on the contrary. Thus, in accordance with section 9(1) of the Data Protection Act and Article 85 GDPR, it was irrelevant whether the incriminated posting was favourable or unfavourable to the BF and what the MB's motive for publishing it had been.

By submission of documents dated 12.08.2019, the MB submitted a copy of a lawsuit filed by the BF against the BG "for the same facts" dated 11.04.2019 to the BG Favoriten for damages for pain and suffering, loss of earnings, injunction and cancellation.

In a further statement of 23 August 2019, the BF argued that a possible journalistic reappraisal of deficiencies in the administration of JA XXXX was in no way connected to the allegations and the posting of the MB's name in relation to the BF. It was denied that there had been a discussion between the BA and the MB regarding grievances in the JA. A longer verbal argument between the parties had only taken place in connection with an administrative offence by the MB reported by the BF. The "input" referred to in the posting was exclusively derived from the television interviews given by the MB.

In the contested decision, the authority dismissed the complaint and, after presenting the arguments of the parties, established the following facts (the names of the parties were adapted):

"The BF appears on the publicly accessible webpage of the XXXX as a functionary. On the said webpage, the information XXXX can be seen. The MB is the owner of a private Facebook profile, which has been subscribed to by around 9,000 people (as of 06.09.2019). On this profile, posts on current topics of the day are regularly written or shared, which, from the point of view of the MB, are of interest to the general public. Furthermore, articles from the magazine XXXX are regularly shared. The MB is the publishing director and journalist for this magazine.

On 06.09.2019, the MB published the following Facebook post on its said Facebook profile:

"There you go. Every day a good deed. Old scout saying. Special thanks to Mr XXXX of the XXXX . From him I had "input" to take action against the abuses in JV- XXXX."

From a legal point of view, the authority in question first presented the constitutional provision of § 1 of the Data Protection Act, furthermore §§ 24 and 9 of the Data Protection Act as well as Art. 1, 4, 6, 9 and 85 of the GDPR.

Regarding point D2, the authority initially affirmed its competence because the MB had used the data in question in his capacity as a private person, but not in his capacity as an employee of XXXX. A direct application of the broad media privilege of Art. 85 (2) of the GDPR and the non-application of Section 9 (1) of the Data Protection Act was ruled out, since the former provision merely contained a mandate to the Member States. An interpretation of Article 9(1) of the Data Protection Act in the light of the case law of the European Court of Justice, according to which the media privilege applies to anyone who works as a journalist, would result in any data processing for "journalistic purposes" being exempt from review by the data protection authority. According to the established case law of the ECJ, exceptions and restrictions with regard to data protection must be limited to what is absolutely necessary. An analogous application of Section 9 (1) of the Data Protection Act to the facts of the case at hand was also ruled out, because the Austrian legislator had taken a deliberately restrictive approach and there was therefore no legal loophole. Only if the requirements of Section 9 (1) of the Data Protection Act are met, legal protection can only be provided by the ordinary courts under the Media Act and the authority against which a complaint is made has no jurisdiction. In all other cases, the authority was competent to deal with the content, whereby it had to take into account the right to freedom of expression under Art. 11 EU-GRC and Art. 10 ECHR.

As the operator of a publicly accessible Facebook profile, the MB was the data protection controller. Article 17(3)(a) of the Data Protection Act always requires a balancing of interests between the fundamental right to data protection and the right to freedom of expression and information. The Facebook posting in question had been written on the MB's Facebook profile, which was named "XXXX". No reference to XXXX could be inferred from this specific Facebook posting. The MB had also not argued that he had received a (paid) order from XXXX to write the Facebook posting in question. Furthermore, there was no connection between the link shared by the MB or the interview by "oe24.at" and XXXX. An extensive interpretation to the effect that a Facebook posting by an employee of a media company would in any case fall under Section 9(1) of the DPA, even though it was written on a private Facebook profile of the employee and had no recognisable connection to the media company, was therefore not necessary. In the case DSB-D 123.077/003-DSB/2018 of 13 August 2018, there had been a sufficient connection to media companies, especially since it had concerned user comments on an online forum operated by a media company. Therefore, the MB had used the data in his capacity as a private person.

Regarding D3, the authority concerned itself with the question of whether the data was generally available to the BF. § Section 1(1) of the Data Protection Act was to be interpreted restrictively in the light of the requirements of EU law, so that generally available data were not ipso facto excluded from the scope of data protection provisions. The processing of these data also required a corresponding justification within the meaning of Article 1(2) of the Data Protection Act or Article 6(1) of the Previous Search Term Data Protection Act and Article 9(2) of the Previous Search Term Data Protection Act. Against this backdrop, it could be left open whether the personal data of the BA mentioned in the Facebook posting in question, who appeared as a functionary on the publicly accessible webpage XXXX, were at all accessible to a claim of secrecy.

Regarding D4, the authority stated that the disclosure was not in the vital interest of the AA, nor was there his consent or a qualified legal basis. However, there was a question of overriding legitimate interests of the MC in the use of this data. The legitimate interests of the MB lay in the freedom of expression pursuant to Art. 10 ECHR and Art. 11 EU-GRC. The BF's legitimate interests generally lie in the protection of his personal data, whereby political opinion and trade union membership are among the categories of data requiring special protection under Article 9(1) of the Data Protection Act. Furthermore, protection against discrediting by the MB was also a legitimate interest of the BF.

In its most recent case law, the ECJ had referred to the case law of the ECtHR and the criteria formulated by it with regard to the question of when "processing for journalistic purposes" existed. These criteria could also be used to weigh up the interests at issue. Accordingly, for the purposes of weighing the fundamental right to secrecy and the freedom of expression, particular attention should be paid to

1. the contribution to a debate of general interest,

2. the notoriety of the person concerned,

3. the subject matter of the report,

4. the content, form and impact of the publications, and

5. the manner and circumstances in which the information was obtained, and

6. its accuracy

to be determined.

Concerning 1: Raising the issue of abuses in a prison was without doubt a contribution to a debate of general interest. In the case at hand, the MB had wanted to express that the BA (as an obviously higher-ranking employee of the prison) had provided the MB with the corresponding "input" for this and had encouraged him to take action against it. It was also not recognisable that the MB had linked the prison officer to the abuses. He merely argued that the MB had received the incentive from the AA to take action against the abuses.

Regarding 2: According to the case law of the Supreme Court, the limits of permissible criticism of politicians in the exercise of their public office are generally wider than for private persons, because politicians inevitably and knowingly expose themselves to the detailed assessment of their words and deeds by the press and the general public. These considerations could be applied to the case at hand. According to official knowledge, the BA was not a publicly known politician, but he appeared publicly as a functionary of the XXXX and thus entered the public stage due to the function of a trade union.

On 3 and 4: With regard to the subject matter of the report and the content, form and effects of the publication, the impression was created that the Facebook posting in question was not exclusively aimed at triggering a contribution to a debate of general interest, but that the wording "XXXX of the XXXX" was quite exaggerated and pointed. However, the use of such language in the context of the publication of information relating to persons did not cause any harm if its secondary purpose was to provoke and shock. A different assessment would be reached if the publication had the sole purpose of wilful disparagement, which was not the case here. With regard to the effects of the publication of the name, the political opinion and the trade union affiliation, these were not to be classified as material. It had to be taken into account that the complainant had voluntarily published the above-mentioned data on the publicly accessible webpage of the XXXX and had thus made these data accessible to the general public on the internet. Due to this public accessibility, it could be assumed that these data were not worthy of protection. The BF was not to be followed when he stated that this data was "only relevant for members", since the website did not exist only for them (e.g. in the form of a closed access area), but was publicly accessible.

It was not overlooked that the BF's rank (XXXX) was not mentioned on the webpage. However, a particular interest in secrecy could not be recognised, especially as his profession ( XXXX ) was in turn publicly visible.

Re 5: The MB had not gained unlawful knowledge of the data mentioned in the Facebook posting, but had apparently found out about them due to his acquaintance with the BF in prison.

Re 6: The data in the Facebook posting was undoubtedly correct.

As a result of this balancing of interests, there was no violation of the right to secrecy, since the legitimate interests of the MB outweighed those of the BA pursuant to section 1(2) of the Data Protection Act. The use of the BA's data by the MB was therefore lawful.

The BF's complaint against this decision is based on violation of procedural rules, illegality of the file and incorrect legal assessment, with the request to amend the decision in the sense of a determination that the BF's rights had been violated and to order the MB to delete the posting. In the alternative, a motion for annulment was filed.

An oral hearing before the Federal Administrative Court was requested.

The authority submitted the complaint to the Administrative Court with the electronic file with the request to decide on the merits of the case and to dismiss the complaint.

In addition, the prosecuting authority stated that the statement of the BA of 23 August 2019 had been received by the prosecuting authority in due time, but had not been recorded due to a recording error in the sphere of the prosecuting authority. However, the statement only contained a legal assessment and no new factual elements were presented. Even in the case of an assessment of the lack of recording of this statement as a procedural deficiency, this would have no relevance. There was certainly a comprehensible connection between the naming of the BA and the criticised grievances of the JA. The MB's interest in naming the BA lay in the fact that it had wanted to make it known that an employee like the BA, who was also a member of a trade union, had provided the impetus for action against the abuses in question. The MB had wanted to show a strong motive for his success against the JA. The authority did not overlook the fact that the chosen wording could be perceived as disrespectful. However, the authority's competence was limited to assessing the admissibility of the use of personal data and not the admissibility of an expression of opinion.

In its reply of 17 June 2020, the MB (further) stated that the "incriminated Facebook page" served journalistic purposes and that, when interpreting Article 85 of the Data Protection Act, it was not a matter of institutionalised activity in the sense of a media company and that journalism by laypersons was therefore also covered (e.g. by bloggers). It is true that Section 9 of the FADP is worded more narrowly in relation to Article 85 of the FADP. However, in the event of a conflict between Union law and conflicting national law, the latter had to remain inapplicable. The restriction to journalistic purposes of the media enterprise or media service also contradicts the case law of the ECJ on Article 9 of the Directive, the predecessor provision of Article 85 of the Directive.

The admissibility of the processing of the BF's personal data was also admissible on the basis of freedom of expression within the meaning of Art. 10 ECHR. § Section 1(1) of the Data Protection Act excludes the data at issue here from its scope of protection as generally available. The statements made by the MB in the incriminated Facebook post were neither untrue nor unsubstantiated value judgements, which is why they were covered by the scope of protection of Art. 10 ECHR. The BA denied that he had given the MB such "input", but at the same time "attributed this formulation or assessment to personal perceptions of the MB during his stay in the prison". From the BF's statement that even informants had a right to protection of personality, it could be concluded that he was not fighting the true core of the incriminated statement. The main purpose of the MB's incriminated Facebook post had not been to malign the BA in public or to associate him with the grievances. He had wanted to express his relief that the XXXX prison was being renovated. In doing so, he had contributed to a debate of general interest.

Moreover, the provision of data - with the exception of the rank - by the BF leads to a low degree of protection of the data. The legitimate interests of the MB therefore outweighed this.

With this reply, the MB also submitted the judgement 40 C 351/19v of the District Court Innere Stadt Vienna of 06.05.2020.

On 3 July 2020, a public hearing took place before the Federal Administrative Court, in which the BF and the MB were heard as parties. Furthermore, a record of the District Court Innere Stadt on the above-mentioned business number of 19.02.2020 was submitted.

The XXXX administrative penalty file of the XXXX correctional institution was also provided.

Subsequently, enquiries were made to the XXXX XXXX and the head of the XXXX correctional institution as to whether the BA - as can be seen from printouts of the XXXX website dated 20.03.2019 and 03.07.2020 - was or is currently or at these dates the deputy chairman of the XXXX at the XXXX or a staff representative in any other capacity.

The XXXX stated that it could not answer the question with sufficient certainty; the information had to be obtained from the BF's employer.

The head of JA XXXX stated that the technical committee at XXXX had been dissolved in XXXX, and that the applicant had not been a staff representative since then. He also did not exercise any political function in XXXX.

The AA stated that the information provided by the JA XXXX was correct. In the meantime, the AA had asked the trade union to delete his data. This should have been implemented by now.

The MB stated that the relevant data of the BF was generally available at the time of the publication of the MB's Facebook posting. Apparently, the publication of his data by the MB had not been motivation enough to see to it that his data were deleted from the aforementioned website.

The complaint is justified in the result:

The following facts are found to be material to the decision:

The BF has been a prison guard for a long time, most recently in the rank of XXXX, and is on duty at XXXX prison, where he is XXXX.

Until the dissolution of the expert committee at XXXX in the course of the organisational change there, he was a staff representative and since then has not exercised any staff representative activity or any political function at XXXX (letter from the head of the prison of JA XXXX dated 02.10.2020).

On the publicly accessible webpage of the XXXX, the BF was in any case still visible in 2019 to mid-2020 with the following information:

" XXXX , Chairman-Deputy XXXX ". A photo of the BF, a (probably official) landline telephone number, a mobile telephone number and an e-mail address are visible there: " XXXX ".

The MB is a former top politician and was sentenced to a - partially conditional - prison term in 2017. He served this prison sentence - partly in closed custody, partly as a free man and partly by wearing an ankle bracelet - and was conditionally released on XXXX (findings 40 C351/19v, judgment of 06.05.2020, page 3).

The BA had personal contact with the MB twice - apart from the present case and another court case at the District Court Innere Stadt Vienna - once on the day of the MB's admission (without closer talks, without friction) and once on 04.11.2018. The MB came to the prison at that time and brought a gargle with him. In the course of the entry control, a dispute arose between the MB and the BF, whereby the BF reported this. The subject of the dispute was the introduction of the gargle solution or alternatives to it. The AA reproached the MB in particular for having spoken to the AA several times in an angry and inappropriate tone and for being intransigent, despite having been instructed in a calm tone.

According to the administrative penalty order issued by the head of XXXX Prison on 09.11.2018, on 04.11 at 18:00 hrs, the MB had intentionally, in XXXX Prison

1. in contravention of the provisions of section 26 subsection 1 of the StVG, despite having demonstrably taken note of the information for inmates of the FG wing on 24.08.2018, in which it was noted that the bringing of pharmaceutical products and medicines was not permitted, did not comply with this order, and

2. contrary to the provisions of section 26 subsection 2 of the Road Traffic Act, loudly and irascibly said to JW officer XXXX, when he explained to him that, according to the above-mentioned information, the unauthorised bringing in of a bottle of chlorhexamed was not permitted, "No one told me that I was not allowed to take this with me and, besides, they can't demand that I die there. I don't get anything at the weekend" and thereby behaved improperly towards a person working in the penal system.

He had thereby committed the above-mentioned administrative offences and was punished for this with the administrative penalties of the reprimand.

The MB objected to this administrative penalty order by explaining in detail the facts of 04.11.2018 from his point of view and also referring to XXXX's trade union function (activist and member of XXXX ") under "political background".

According to further transcripts, on 19.12.2018 a sentence was handed down by the head of XXXX prison with the following sentence:

"On 04.11.2018, the prisoner XXXX intentionally had an object, explicitly a bottle of "Chlorhexamed", in his custody in the XXXX correctional institution, contrary to the provisions of section 33 subsection 1 of the StVG, which was not properly left to him either on admission or later, in that he did not show it after an exit granted to him and it was only found in his pocket during the inspection by the prison guard XXXX.

He thereby committed the administrative offence under section 107(1)(5) StVG and is punished for this under sections 109(1) and 110 StVG with the administrative penalty of a reprimand."

It could not be established that the MB at any time complained to the BF about mould infestation in the detention rooms or other rooms of XXXX Prison and that the BF on this occasion or in this context stated to the MB that the MB could complain about it or about anything.

The MB is the owner of a private Facebook profile which, as of September 2019, was subscribed to by approximately 9000 people. On this Facebook profile, articles on current daily topics were regularly recorded or shared at the time, which were of interest to the general public from the point of view of the MB. Furthermore, until this journal was discontinued, posts from XXXX magazine were regularly shared. The MB was the publishing director and journalist at this magazine.

On 06.02.2019, the MB published the following Facebook post on his said Facebook profile:

"There you go. Every day a good deed. Old scout saying. Special thanks to XXXX from the XXXX . From him I had the "input" to take action against the grievances in the JV- XXXX."

In concrete terms, the Facebook posting is as follows:

After his release from prison, the MB gave an interview to the television station oe24 on XXXX about his time in prison. When asked by the presenter whether he had been the subject of hostility in prison because of his celebrity, the MB stated:

"No, well, I would like to say in general, first of all, as far as the civil service is concerned, and with one exception, all of them - from the top to the small batches at the gate guard, they do excellent work there (...) so great respect, great praise, except for one. So there's politics in prison too, let me tell you. I had a problem with one officer - he with me, I with him not at all - he had a problem with me. When I researched who that was, I found out: XXXX, who just flexed his muscles and thought, well, I'm going to annoy XXXX a bit. He did that, yes, he should have. That takes place on a different ground. We'll have a look at that later."

On 06.02.2019, the MB linked to an oe24 article with the headline " XXXX : Schimmelknast wird jetzt saniert" and published the above-mentioned posting of 06.02.2019 (findings 40 C 351/19 v of the BG Innere Stadt of 06.05.2020, p 4 and 5).

An action brought by the BF against the MB before the District Court Innere Stadt Vienna for Euro 3,400 (damages for mortification suffered and loss of earnings, injunction and cancellation) was dismissed by final judgement of the BG Innere Stadt of 06.05.2020 at 40 C351/19v.

Evaluation of evidence:

The findings on the BF's actual activity within the framework of the staff committee as a member of the XXXX result from the BF's statements in connection with the above-mentioned survey results, in particular with the head of the XXXX correctional institution.

The findings on the imprisonment of the MB in JA XXXX result from the information provided by the MB in conjunction with the findings of the judgement of the District Court Innere Stadt, which was submitted without comment and thus uncontradicted by the MB himself.

The findings on the actual contacts of the BA with the MB prior to the present court proceedings and the proceedings before the prosecuting authority are also essentially based on the statements of the parties, whereby - in part - only the circumstance was disputed as to whether discussions were also held between the MB and the BA about mould in the XXXX correctional institution and whether in this respect the BA "gave the input" to the MB to take action against such abuses.

The MB first explicitly stated in his statement of 23 July 2019 that he had had a conversation with the EAF in this regard (massive grievances, such as mould formation, leaky windows and poor water quality) during his imprisonment, "in which the EAF suggested that these grievances be uncovered", which the MB then also did successfully (p. 3 there).

The BA expressly denied that a discussion had taken place between the parties regarding grievances in the prison (statement of 23.08.2019, p. 2).

The oral hearing took place primarily on the basis of these contradictory statements.

There, the BA again denied that he had ever spoken to the MB about "mould in prison" (transcript, p. 3).

The MB initially answered this question in an evasive manner: when asked explicitly whether the BF had suggested in the conversation with the MB to uncover grievances with mould in the JA, the MB first stated that it should be OK that he (the BF) had not let him in with the washing-up liquid. However, the MB then said why he had a sore throat, because there were broken windows and mould. When asked the same question again, the MB then stated: "Yes, it was part of the conversation" (NS, pp. 8 and 9). When confronted with the situation at the time, which resulted from the JA's file, the MB then provided the following explanation: "In the course of the dispute I said, you know, where you get sore throats, it comes from the broken windows, from the mould and from the catastrophic conditions that prevail here. The BF then said I could complain. I took it up, did it, published it and the solution was there. In the end, I thanked him for that. That was the BF's 'input'."

Subsequently, the MB stated that the BF had made a general statement, he had not said "complain about the mould". He had said that the MB could complain about anything. The enumeration including mould had come from the MB, he admitted. He maintains that it was an acknowledgement (to the BF) that he had helped the MB along (NS S 13).

The 6-page submission of the MB to the head of JA XXXX of 22.11.2018 (about 2 weeks after the incident) does contain a very detailed description of the incident from the point of view of the MB (there p 1 and 2), but neither the allegation that the MB had raised grievances in connection with mould with the BF, nor that the BF had said to the MB that he could complain (about something or everything). The submission does contain, on p. 3, statements about what the MB considers to be the presumed cause of ENT disorders of inmates, namely mould infestation in parts of the wet rooms. The submission does not allege or even hint at the fact that this had even been a topic of conversation with the BA.

Before the District Court Innere Stadt, the BF stated (minutes of 19.2.2020, p 2) that he could not remember "whether the defendant had mentioned anything about mould or so". The BF had told the MB that he could complain in connection with a document that he had had the MB sign. In this document, the MB had been instructed that he was not allowed to bring pharmaceutical products into the JA.

The MB stated on p. 7 that he had told the BF that he did not intend to die here (in the JA). He listed that the windows in the wing were broken, that there was a draught like in a bird house and that there was also mould in the bathrooms. In response, the BF had said "harmlessly and completely correctly" that the MB could complain about anything.

Concerning the relevant allegation of the MB, it is a case of testimony against testimony. However, it can be assumed that the MB - if the content of the conversation he claimed had actually taken place as he stated - would have at least hinted at it in his prompt and very detailed statement to the head of the JA. Furthermore, it is evident that the BA massively relativised his explicit assertion in the statement of 23 July 2019 in the course of his questioning before the Administrative Court and thus clearly questioned his own credibility regarding this circumstance. The MB is therefore in no way more credible than the BA with regard to this content of the conversation, so that a negative finding was made.

Even if the content of the conversation alleged by the MB (his dispute with the AA) were true, the MB's statement that he maintained that the posting in question was a thank-you for the AA's help would not be covered by the MB's interpretation of the content of the conversation.

The findings already made by the prosecuting authority regarding the MB's Facebook profile are based on the screenshots submitted in connection with the MB's statements and an official search on the Facebook platform of the prosecuting authority on 6 September 2019.

Legally follows:

As described in detail, the prosecuting authority affirmed its jurisdiction, denied the applicability of the media privilege, considered the data protection provisions to apply despite possible public access to parts of the data in question, and finally carried out a detailed weighing of interests between the interests of the BF on the one hand and the MB on the other. In this regard, it came to the conclusion that the interests of the MB far outweighed those of the BF.

In its complaint, the BA first complained about the failure to take into account the statement of 23 July 2019, in which the BA denied the allegation that there had been a discussion between the parties regarding the grievances at the JA.

The authority wrongly counters that in the context of this statement, only a legal assessment was made and no new elements of the facts were presented. Only the argument that the applicant had not given his consent to the naming of his name was new, which, however, had not been assumed in the decision.

It is true that with the aforementioned statement, the BF decidedly countered the MB's express submission at the factual level. This circumstance, the question of the content of the conversation between the parties, was relevant and was therefore taken by the Administrative Court as a reason to hold a public oral hearing.

Regarding point 2 of the complaint, the BA commented on the weighing of interests carried out by the authority concerned and stated in particular that the MB did not succeed in establishing a connection between the person of the BA and the responsibility for conditions at the JA, nor had he given the MB any corresponding "input". In addition, the BA was not a publicly known politician. The function of a staff representative or trade unionist was not one of public interest. It was about the protection of the interests of a more limited group of persons.

These objections are justified:

They are aimed at the balancing of interests carried out by the public authority, which, however, only needs to be addressed after clarification of the incompetence of the public authority claimed by the MB due to the applicability of the media privilege and the denial of the relevance of the public availability of the relevant data:

The comments of the MB in its reply regarding the applicability of the media privilege are to be countered with the fact that - as rightly pointed out by the respondent authority - Art. 85 (2) of the previous search termDSGV next search term constitutes an opening clause and enables the Member States to provide for deviations or exceptions from certain chapters of the previous search termDSGV next search term. Paragraph 1 does not constitute an exemption from the applicability of the Prior Search Term Data Protection Act and contains a programmatic mandate for Member States to legislate to reconcile the right to data protection with the right to freedom of expression and information. Therefore, there is no full harmonisation in this area (Öhlböck in Knyrim, DatKomm Art. 85 DSGVO, Rz 10, as of 01.10.2018, rdb.at).

Paragraph 2 constitutes a mandatory regulatory mandate (as above, margin no. 19). The narrow understanding of the term "journalism" in para 1 is not compatible with the recital, according to which terms such as journalism are to be interpreted broadly. Moreover, the restriction to journalistic purposes of the media undertaking or media service contradicts the case law of the ECJ on Art. 9 DPA, according to which journalistic purposes exist if their aim is to disseminate information, opinions or ideas to the public (as above, para. 50).

If the MB thus refers to journalistic purposes with reference to Art. 85 of the GDPR, these are to be denied on a case-by-case basis with reference to the findings:

The authority in question has already comprehensibly shown that the posting on which these proceedings are based was posted from the BF's private Facebook page. The MB may also have been active as a journalist in connection with the XXXX magazine. If the MB qualifies the posting in question here as an outflow of his journalistic activity, because it was in connection with pointing out inadequacies in the prison, he must be countered as follows:

According to the findings, there is no connection between the BF's statements and the possible highlighting of inadequacies in the JA XXXX with regard to the formation of mould, which could be qualified as "input" of the BF for complaints of the MB. Even if the BF - in whatever context - should have expressed to the MB that he could complain, according to the objective explanatory value, the posting in question here, "There you go. Every day a good deed. Old scout saying. Special thanks to Mr XXXX of the XXXX . From him I had the input to take action against the abuses in the XXXX correctional institution" to be understood to mean that the MB had learned from the BF the suggestion to take action against abuses in the XXXX correctional institution. Since a factual basis in this regard did not emerge and the MB did not provide any other suitable explanation as to why the naming of the MB's data should have been necessary for journalistic purposes (according to the MB's submission, it is about pointing out abuses in the correctional institution), the MB does not show any circumstances, even taking into account the primacy of the application of Union law, which would exclude the jurisdiction of the prosecuting authority on the basis of the applicability of media privilege.

The authority further assumed that Section 1(1) of the DPA should be interpreted restrictively with regard to the exclusion of an interest due to the general availability of data and that generally available data are not ipso facto excluded from the scope of data protection provisions. In this regard, the authority also referred to the decision DSB D123.076/0003-DSB/2018 of 31.10.2018. In this case, it is alleged that the complainant, who objected to data processing of his mobile phone number, had published the data on his website anyway. In the above-mentioned decision of the DPA, the authority correctly stated that the mobile phone number had not been made generally available in order to receive calls for advertising purposes. It served as a "counselling number" for needy persons and was not to be used inappropriately (for advertising purposes).

These principles are also to be applied on a case-by-case basis: The fact that some of the data in question appeared on a website in connection with the BF's staff representation activities, which ended in 2015 anyway, had the purpose of publicising the composition of the staff representation in the area of the XXXX and, by publicising the mobile phone number, also providing a possibility to contact the relevant contact persons in relation to the staff representation. However, the purpose of this data disclosure was not to make the data available to a public beyond the purposes of the staff representation for any use.

In addition, the linking of the data with further information (even if one would assess such an "input" for a reorganisation positively from the perspective of the MB, this information exposes the AA to his employer) is essential. Also from this point of view, the MB has nothing to gain from the partial public availability of the BF's data.

The court agrees with the view of the authority concerned in this regard, according to which these data are therefore not exempt from the scope of data protection regulations. The publication that took place here, the objective purpose of which remained unclear until the end, did not take place within the purpose that results from the publication on this website (which, moreover, remained on the internet beyond the functional period).

Furthermore, the discerning senate basically shares the considerations of the authority in question regarding the weighing of interests.

However, due to the findings that have now been made, this is based in part on other prerequisites:

With regard to the criterion of the contribution to a debate of general interest (point 1.), it must be stated that in this regard, the focus is not on the general question of revealing grievances in a prison, but on the question of whether the use of the data of the BA in this context contributes to a debate of general interest. With reference to the findings and the above considerations, this is to be answered in the negative.

With regard to point 2, the authority in question must be agreed with insofar as the AA entered the public arena, at least in the past, with regard to his staff representation and trade union activities. Nevertheless, it is to be assumed that the BA has a very low level of public awareness, which by no means sets the limits of permissible criticism as far as politicians in the exercise of their public office.

Regarding point 3, subject of the reporting, it must again be pointed out that in the absence of an ascertainable connection between the BA and the pointing out of abuses in the prison, a relevance of the BA's data in this regard cannot be recognised.

Regarding point 4, content, form and effects of the publication, it must also be pointed out that there is no connection.
In principle, it is correct to note to the detriment of the BF - in accordance with the statements of the prosecuting authority - that at least in the past the BF voluntarily published his data on the publicly accessible webpage of XXXX and in this respect it could be assumed that these data are not worthy of protection. However, the posting to be assessed is not related to the purpose of the publication. Furthermore, in the posting the published data is linked to other content, so that this criterion (point 5.) also does not work in favour of the MB overall.

Regarding point 6, the accuracy of the information, it should be noted that it is largely but not entirely correct. They are no longer correct insofar as they represent a current professional policy or staff representation function of the BF. However, due to the fact that they were still published at the relevant time, the MB cannot be blamed for this incorrectness.

In an overall assessment, however, the BF's interest in keeping his data secret must be considered to be substantially more important than the MB's interest in publication - now in contrast to the assessment of the authority against which the decision was taken and the MB's statements - so that the contested decision had to be amended in the sense stated in the ruling, the unlawfulness of the relevant publication had to be established and the deletion of the data on the website had to be ordered within a period of time.

The inadmissibility of the appeal was based on the fact that only individual circumstances had to be clarified and legal questions of fundamental importance did not have to be resolved.