In the decision of December 2, 2019, GZ: DSBD124.352/0003-DSB/2019, the data protection authority had dealt with a balancing of the right to
secrecy (Section 1 of the Data Protection Act) against the right to freedom of expression.
The complainant is a police officer in Tyrol and was part of an operation at Christmas time 2018. A 12-year-old minor – housed in a residential home – had gone missing. He had visited his family and two sisters for Christmas 2018 -. The parents had informed the police due to the known departure in the dormitory, which – assigned by the district control center – drove up with two patrol cars and 6 men uniformed crew with the single-family house, in order to fetch the minor.
The minor’s father – the respondent in the proceedings before the data protection authority – had taken photos from the attic showing the emergency vehicles parked in the driveway together with several police officers and posted them on Facebook with the caption “This is how 12-year-old children are taken away from home by the police against their will. Please share.”
The complainant then requested the respondent by telephone to remove the Facebook posting. Shortly thereafter, the
Respondent again posted the same photos on Facebook, this time under the title “Auf ein neues Frau Müller” (name of the complainant changed by the data protection authority).
The complainant felt that her right to confidentiality had been violated by the two Facebook postings.
The data protection authority dismissed the complaint with regard to the first posting because it could be assumed that this was a contribution to a debate of
public interest (namely, the appropriateness of picking up minors with two patrol cars and 6 uniformed crew) was present
and the right to freedom of expression prevailed.
The situation was different with regard to the second posting: This posting did not contribute to a debate in the public interest. The
Rather, the respondent’s purpose was to publicly express his displeasure and also mentioned the complainant’s last name, which is why the complainant’s legitimate interest in confidentiality prevailed and the complaint had to be upheld on this point.