Privacy in Austria: overview
A Q&A guide to privacy in Austria.
The Q&A guide gives a high-level overview of privacy rules and principles, including what national laws regulate the right to respect for private and family life and freedom of expression; to whom the rules apply and what privacy rights are granted and imposed. It also covers the jurisdictional scope of the privacy law rules and the remedies available to redress infringement.
To compare answers across multiple jurisdictions, visit the Privacy Country Q&A tool.
This article is part of the global guide to data protection. For a full list of contents, please visit www.practicallaw.com/dataprotection-guide.
Austria has been a signatory to the European Convention on Human Rights (ECHR) since 1958. The ECHR was adopted at the rank of a constitutional law and is directly applicable. This means that any complaint filed with the Austrian Constitutional Court (VfGH) can invoke the guaranteed rights of the ECHR. The European Court of Human Rights does not have the power to repeal domestic legal acts like laws, rulings or decisions. It can only state that a provision of the ECHR or of its protocols has been violated. However, states are obliged to implement the Court’s rulings with all available means and, if necessary, to adapt their national legislation.
The general Austrian law in relation to protecting fundamental rights is the Austrian Basic Law on the General Rights of Nationals (Staatsgrundgesetz) (StGG) which is a law of constitutional rank.
Specific aspects of the protection of citizens’ private and family lives are also regulated by “simple” national regulations like the:
Austrian Civil Law Code (ABGB) for the protection of personal rights.
Data Protection Act 2000 (Datenschutzgesetz).
Law on householders rights (Hausrechtsgesetz).
Privacy law is a constitutional civil right which mainly applies to natural persons. Only certain aspects of the privacy law rules also apply to legal persons, that is, the right to respect of its home and its correspondence or the right to data protection. As the right to respect for private and family life closely relate to human personality, this aspect of privacy law does not apply to legal persons.
According to a ruling of the VfGH, private life covers everything regarding the unique personality of a person in their physical, mental and spiritual existence.
The following are subject to the protection of Article 8 ECHR:
To have freedom within one's own body:
To express sexual preferences.
To disclose or conceal one's state of health.
To choose leisure activities.
To maintain intimate privacy.
The protection of private life also includes the protection of the human desire to procreate and to give birth to offspring. Furthermore, everyone has the right to respect for his home and correspondence.
Interferences with these fundamental rights are admissible but only if the measures are proportional (for example, in the interests of national security or to prevent disorder or crime).
Fundamental rights generally bind the State and they must try to refrain from interfering with these rights. Fundamental rights also bind the State when acting as a private person.
The State has a duty to not only refrain from interfering with fundamental rights; it must also take appropriate measures to protect these rights. This means that by applying Article 8 ECHR, national authorities must protect citizens from having their rights infringed by other citizens.
The situation is more complex with regard to relationships between citizens. Some fundamental rights apply explicitly to relationships between citizens (for example, the right to data protection or the requirement of equal treatment in labour law) whereas the ECHR only addresses its signatory states.
The VfGH is the “guardian” of fundamental rights in Austria, but there is only limited possibility for legal enforcement of the State’s duty to protect fundamental rights. The VfGH may only rescind rulings, ordinances and laws, as described in the constitutional review of the Austrian Federal Constitutional Act (Bundesverfassungsgesetz). Laws may only be rescinded if they had been passed, so no legal remedy exists if the legislator remains inactive.
In general, a citizen cannot be prosecuted at the VfGH or any court on the grounds of violating another citizen’s fundamental right. Claims can only be made based on civil law clauses that are open to interpretation according to fundamental right. This includes the public morals clause of section 879 of the ABGB or the protection of personal rights according to section 16 of the ABGB. In these cases, the affected citizen may file an action for an injunction or for damages with the civil courts.
Dr. Ferdinand Graf, Founding Partner
Graf & Pitkowitz attorneys at law
Professional qualifications. New York, 1994; Austria, 1993
Areas of practice. Mergers and acquisitions/ transactions; cartel law and competition law; IT: intellectual property; corporate law.
Heads the M&A, competition and cartel law practice groups, often handling cross-border transactions, such as recent company acquisitions in Italy, Moldova and Bosnia.
Represented the Austrian public statistics office in a data protection dispute before the Highest Austrian Administrative Court.
Languages. German, English
Professional associations/memberships. Austrian Bar Association; American Bar Association; New York State Bar Association; International Bar Association; Center for International Studies, Salzburg ; Austrian Fullbright Alumni Association (Verein der österreichischen Fulbrighter), Wien.
- New ECJ Judgment on Ad-Words, Wirtschaftsblatt, 2012, (Co-Author).
- What constitute breach of secrecy under Austrian Law, Wikileaks, Wirtschaftsblatt 2011.
- Whistleblowing-Hotline: Decision of the Austrian Data Protection Authority- Individual Issues, 2008.