Austria: (De)Regulatory Affairs Or The Delegates' Proposal For Altering The National Data Protection Act

Last summer and thus, before the elections of the Austrian parliament took place in autumn, the Austrian legislator rushed through the national Data Protection Amendment Act 2018 (Datenschutz-Anpassungsgesetz 2018, DSG 2018). In the pre-election phase the governing parties could not find the required majority to amend the constitutional law provisions which are part of the current legal framework.

The solution back then: those constitutional law provisions just remained as they were. The issue with this solution: content-wise, it did not really make any sense. The most prominent example was the remaining applicability of the fundamental right to data protection to legal entities, while the GDPR only covers the protection of natural persons regarding the processing of personal data.

On 22 March 2018, members of the national parliament filed an application to amend the Austrian Data Protection Act in order to clarify certain aspects which have led to confusions over the last couple of months. Besides several provisions relating to competence matters, the proposed "Privacy Deregulation Act 2018" (Datenschutz-Deregulierungs-Gesetz 2018) contains inter alia the following aspects which might be of relevance from a company's perspective:

  • No fundamental right for legal entities

    As mentioned, there were ongoing (academic) discussions on the applicability of the fundamental right to data protection to legal persons since the Data Protection Act 2000 (DSG 2000) was protecting both – natural and legal persons – and Art 1 DSG 2018 was not rephrased. Now, the Privacy Deregulation Act 2018 contains a rephrased version of the fundamental right in Art 1 which narrows its scope explicitly to natural persons, but also tries to improve readability. Apart from that, the scope should not undergo any significant changes, the recitals state. Art 1 Paragraph 3 explicitly makes clear that the third-party effect of the fundamental right to data protection remains unchanged.
  • Rescue of the "Official Secret"

    The suggested new version of Art 4 Para 5 Privacy Deregulation Act 2018 provides a limitation of the data subject's access rights: if the controller fulfills sovereign tasks and providing the information endangers those tasks, the access right according to Art 15 GDPR "does not exist". The EU law basis for this restriction is to be found in Art 23 GDPR which provides a rather broad basis for restricting the data subject's rights under the GDPR with respect to "public security purposes".
  • Mandatory DPOs for regional authorities

    According to the recitals of the suggested Privacy Deregulation Act 2018 an insertion in Art 5 Para 3 shall clarify the obligation to designate a Data Protection Officer (DPO) in the public sector: it should be specified that the obligation applies only to bodies established in forms of public law, in particular as an authority of a regional authority (Organ einer Gebietskörperschaft). Entrusted bodies (Beliehene) shall be exempt from the obligation to appoint DPOs (unless one of the other obligations of Art 37 apart from "being a public authority or body" according to Art 37 Para 1 lit a applies).
  • The processing of personal data in employment context

    The current version of Art 11 DSG 2018 which states that the Labour Constitution Act (Arbeitsverfassungsgesetz, ArbVG) shall insofar as it regulates the processing of personal data, be seen as a rule within the meaning of Art 88 GDPR and further that powers granted to the works council under the ArbVG remain unaffected, is "banned" in the recitals. The proposed new version purely states that the powers of the workforce according to the third main section of the ArbVG, in particular according to its Paragraphs 89, 91, 96, 96a and 97, as well as the rights of participation in relation to the employee representation, remain unaffected as far as the processing of personal data is concerned. The recitals further state that not every violation of the ArbVG leads to criminal liability under Art 83 GDPR, but violations of protective provisions of the ArbVG concerning the processing of personal data are subject to the regime of Art 83GDPR.
  • Matching of images

    Art 12 Para 4 Subpara 3 currently prohibits automatically matching personal data obtained from image recordings with other personal data. Simply put, it makes face IDs from mobile devices illegal. The proposed amendment suggests enabling the matching of images with explicit consent, i.e. an expression of will, voluntarily and in an informed and unambiguous manner given in the form of a statement or other unambiguous confirmatory act by which the data subject indicates that he / she agrees to the processing of the personal data. In other words, implied consent is not enough.

Since there are already numerous uncertainties deriving from the GDPR itself, the suggested alignments which aim to contribute towards clarification at least on a national level, are warmly welcome. At first glance, some of the suggestions also seem to meet those expectations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions