Data Protected - Austria

Contributed by Schönherr Rechtsanwälte GmbH

Last updated August 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

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

In Austria, the Datenschutz-Anpassungsgesetz 2018 was published on 31 July 2017. It is the national law assisting with the application of the GDPR. After further revision in March 2018, it became effective on 25 May 2018 and is now called the "Datenschutzgesetz".

 

Entry into force

The GDPR applies from 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

Austrian Data Protection Authority (the “Data Protection Authority”)
Wickenburggasse 8
1018 Vienna
Austria

www.dsb.gv.at

The Austrian Data Protection Authority will represent Austria on the European Data Protection Board. The head of the Austrian Data Protection Authority has been elected as the chairwoman of the European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

The old regime of international data transfer approvals and registration was repealed when the GDPR became effective. However, the Data Protection Authority's register on data applications will remain in place as a publicly available archive until the end of 2019.

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The Law Enforcement Directive was implemented by the Datenschutzgesetz. Apart from the GDPR, the Austrian legal landscape provides for additional sector specific data protection regulations, such as in the insurance, healthcare or telecommunications sector. However, there is no specific employee data protection law in place.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

The switch to the GDPR forms a paradigm shift in Austria. The old Datenschutzgesetz 2000 protected the personal data of individuals and legal entities while under the GDPR and the now effective Datenschutzgesetz only an individual's data will be protected.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Under Austrian case law, the consent wording has to explicitly reference the right to consent revocation.

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

In Austria, the age at which a child can provide a valid consent is reduced to 14 years old by the Datenschutzgesetz.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

Apart from the GDPR, Austrian law typically provides for sector specific regulations on the processing of sensitive personal data. For instance, insurance companies must observe the requirements of the GDPR as well as national insurance law regulations when processing health data of their policyholders. National data protection regulations apply to other industries as well, as it is the case, for example, with telecommunications providers or with pharma companies or healthcare organisations when they are processing patient or health data.

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

When processing information about criminal offences, both the GDPR requirements and national restrictions need to be observed. The Datenschutzgesetz allows the processing of such data if there is a statutory basis for that processing. For example, some industries such as banking institutions are entitled by law to process information about the criminal records of their employees or of job applicants when they apply for key positions. The Datenschutzgesetz also allows such processing if it meets the legitimate interest balancing test. Even when the balancing test favours this processing there must be appropriate safeguards to protect the interests of the data subject.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

Data protection officers must also be appointed where required by national law. However, Austria has so far not introduced additional mandatory obligations to appoint data protection officers.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

In Austria, the Data Protection Authority has the power to draw up a list of “high risk” processing but has not done so yet. However, the Data Protection Authority has issued a white list of data processing activities that are exempted from the GDPR's privacy impact assessment requirement (here).

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Austria, the view is taken that the language of such privacy notices must properly address data subjects. Given that Austria is a German speaking nation it is therefore the common view that privacy policies should be in the German language and, if it also addresses an international audience, it should additionally be available in English.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

Moreover, controllers in certain sectors may be required to inform sectoral regulators of any breach. For example, telecoms providers are required to notify the telecoms regulator in case of breach of telecoms related data.

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

In Austria, binding corporate rules have not enjoyed significant relevance so far. Rather, international data transfers are typically based on Model Contracts or the Privacy Shield registrations. We do not expect this to significantly change under the GDPR, at least not in the medium term.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

Imprisonment

In Austria, the Datenschutzgesetz  will continue the same criminal sanctions as they had been in place under the old Datenschutzgesetz 2000. In summary, the law penalises for the misuse of personal data if the offender either aims at gaining pecuniary advantage from such misuse or deliberately intends to cause harm to the affected data subject. Such misconduct can lead to criminal sentences of up to one year. However, so far, we are not aware of any enforcement actually having taken place under that provision.

Additionally, the Datenschutzgesetz provides administrative fines of up to EUR 50,000. For instance, infringements of the law's CCTV regulation or regulation on the data secrecy (which are both not regulated by the GDPR but by the Datenschutzgesetz) might be subject to such sanctions.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

Practice

In Austria, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the current law could be seen as instructive.

The latest report of the Data Protection Authority was published in March 2017. According to this report, which covered the years 2014 to 2016, the Data Protection Authority dealt with 551 complaints from data subjects, with 1071 “ombudsman” complaints (where the Data Protection Authority is not entitled to release binding decisions but rather recommendations) and 519 approvals of international data transfers (note that the GDPR will replace the currently existing obligation for international data transfer approvals). The Data Processing Register dealt with 8,520 applications for registration since 2014 (note that the Data Processing Register will be replaced by an archive that will hold on display the registrations of the Data Processing Register until the end of 2019).

There is no statistical data on criminal prosecutions for data abuse available, as the Datenschutzgesetz 2000, which provides for a criminal penalty of up to one year’s imprisonment, is only a subsidiary provision and therefore applies only if no other sanctions of more severe character pursuant to other provisions of the Criminal Code apply. Therefore, prosecution for data abuse will typically be subsumed within prosecution for other crimes (fraud, “cyber crimes” and, for the public sector, abuse of authority).

While the Data Protection Authority is competent for assessing whether a breach of the Datenschutzgesetz 2000 took place, administrative fines for such breaches of the Datenschutzgesetz 2000 are imposed by local administrative authorities (which frequently rely on the findings of the Data Protection Authority). Due to the multiplicity of these authorities there is no statistical data available on the level of penalties.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Section 107 of the Telecommunications Act (Telekommunikationsgesetz 2003) (the “TKG”) implemented Article 13 of the Privacy and Electronic Communications Directive. Section 107 of the TKG came into force on 20 August 2003 and was last revised on 1 March 2006.

The TKG revision in October 2011 also included amendments in order to comply with the amendments to the Privacy and Electronic Communications Directive.

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Cookies

Conditions for use of cookies

Despite having been revised, currently the TKG does not expressly address the conditions for use of cookies nor does it expressly clarify whether the use of browser settings can be qualified as consent for the use of cookies. Instead, it refers to an obligation of telecommunications or e-commerce service providers to provide the user with all embracing information about the collecting and processing of his personal data. The TKG also makes clear that the user's data must only be collected if he has given his consent. This does not, however, introduce a new concept, but rather confirms the existing legal status. According to the legislator's (non-binding) explanatory remarks the required consent can be declared through browser settings, provided the user received appropriate information in advance. However, in practice more and more companies have turned to proactively obtaining users' consent, e.g. by implementing "Cookie banners" on their websites.

Regulatory guidance on the use of cookies

Not applicable.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

It is only permissible to send unsolicited direct marketing e-mails if the recipient has given his prior consent.

Conditions for direct marketing by e-mail to corporate subscribers

As this opt-in principle applies to corporate relations as well, it is only permissible to send unsolicited direct marketing e-mails to a corporate subscriber if he has given his prior consent.

Exemptions and other issues

Within already existing customer relationships it is permitted to send e-mails to customers for the purpose of direct marketing if the similar products and services exemption applies. In this respect, it is important to note that the recipient can object to direct marketing e-mails through registration in a public opt-out list, which has been established pursuant to the E-Commerce Act and which is administered by the RTR. As subscribers are entitled to revoke their consent anytime, Section 107 of the TKG also prohibits direct marketing e-mails if the identity of the sender is disguised or concealed or if an opt-out address is not provided in the e-mails. The sender must also include the eCommerce information.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

It is not permitted to make direct calls for marketing purposes to individual subscribers without their prior consent. It is also not permitted to make calls in order to obtain the subscriber’s approval for subsequent direct marketing calls.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

As this opt-in principle applies to corporate relations as well, it is also not permissible to make direct calls for marketing purposes to corporate subscribers without their prior consent. Again, it is also not permissible to make calls in order to obtain the subscriber’s approval for subsequent direct marketing calls.

Exemptions and other issues

Consent of corporate subscribers might be assumed if their contact address, phone and fax number is published on their website. However, there has been no clarifying judicature on this matter so far. Additionally, Section 151 of the Austrian Trade Act authorises address and marketing undertakings, within certain limits, to contact subscribers for their business purposes.

Subscribers can revoke their consent anytime. In order to facilitate subscriber revocation of their consent, callers must provide the subscribers with information about the caller’s identities and their contact details.

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