OGH - 4Ob84/19k
| OGH - 4Ob84/19k | |
|---|---|
 | |
| Court: | OGH (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | Article 6(1)(f) GDPR Article 14 GDPR Article 80(2) GDPR § 1 UWG (Austria) § 28 DSG (Austria) |
| Decided: | 26.11.2019 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 4Ob84/19k |
| European Case Law Identifier: | ECLI:AT:OGH0002:2019:0040OB00084.19K.1126.000 |
| Appeal from: | OLG Wien GZ 133 R 31/19k-17 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | Rechtsinformationssystem des Bundes (RIS) (in German) |
| Initial Contributor: | Kari |
Austrian supreme court holds that group actions can be brought exclusively in front of DPA and require explicit mandate, and finds privacy law breaches to be unsuitable element under competition law.
English Summary
Facts
A business added names and other personal information from a list of Austrian registered psychotherapists, which had been publicly available on a federal ministry‘s website, to their own register of psychotherapists and psychotherapists in training with supervision. The commercial website offered paid features for listees including prioritisation in search results and the possibility to add further information, such as links and pictures.
Action was brought by an association of Austrian psychotherapists in order to stop the publishing of listee's names without consent or, alternatively, stop providing a competitive advantage to paying listees. The latter was perceived as misleading since it was not clearly indicated that top or enhanced listings were part of a paid advertising package.
Dispute
Can the defendant rely on Art 6 (1) (f) /legitimate interest as a basis for the processing and were appropriate information requirements according to Art 14 met?
Can the defendant’s activities be challenged under competition law?
Holding
The Austrian supreme court refers to § 28 DSG (Austrian data protection act) and concludes that this exclusively grant rights for group actions by associations and other bodies in front of the national data protection authority, but not in front of courts. In addition, it finds, was the association not explicitly legitimised by its individual members to bring such action for them, nor had it claimed to be doing so.
It supports this by reference to Art 80 (2) GDPR which require an explicit provision from the national legislator for action brought by an organisation without explicit commission from the data subject.
Hence, due to a lack of active legitimation to bring group action, it does not review the applicability of Art 6 (1) (f) and 14 GDPR.
Regarding privacy related claims based on competition law, the supreme court raises the question of general admissibility (Zulässigkeit). It does not decide on the question, instead negatively answers the question of substantial suitability of privacy rights to constitute a breach of law leading to an application of §1 UWG (Austrian competition act) and hence denies the claim.
Comment
The lower court (OLG Wien) had held that the defendant could rely on Art 6 (1) (f) GDPR. According to OLG Wien, the business’s legitimate interest was not outweighed by the data subjects’ rights since a public’s need to be informed via the (amongst other things with mobile device compatibility) enhanced list had in addition to be taken into account.
Furthermore, it considered all information requirements according to Art 14 GDPR as met, but pointed out that even if this had not been the case the data processing would still have been legitimate.
The claimant's appeal to the supreme court primarily challenged this assessment in relation to Art 6 (1) (f) and 14 GDPR. (The appeal was accepted by the supreme court with reference to the unanswered question of the relationship between privacy rights and competition law.)
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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.
