The registration of guests introduced by the Magistrate of the City of Vienna as of September 28, 2020 is a violation of data protection regulations in the catering industry. With this ordinance, the provincial capital wanted to extend the current 10 p.m. curfew for Viennese catering establishments. The data protection authority agrees with a complainant who turned to it regarding personal data. The decision refers to the Vienna Contact Tracing Ordinance and also to § 5 EpidemieG. However, the decision is not yet legally binding.
Based on the decision, it follows that the processing is not based on Art 6 para 1 DSGVO but the stricter requirements of Art. 9 (2) DSGVO can be applied. Art 9 (2) DSGVO are to be applied, whereby the “legitimate interest” according to Art. 6 (1) DSGVO also ceases to apply.
But how does this happen?
The registration requirement was introduced by regulation in coordination with economy chamber (Wirtschaftskammer) Vienna to facilitate the detection of contact persons in the restaurant industry. The aim was to enable Viennese restaurants to be kept open longer in the evening (longer than 10 pm). Data such as name, telephone number, e-mail address, table number were collected, which must be transmitted at the request of the authority.
The guest registered in the restaurant, but subsequently filed a complaint. The Authority notes that, although only information such as name, telephone number and email address has been provided, this is health-related data in the context of contact tracing. This information should therefore be considered as particularly sensitive data. In principle, the processing of health-related data is possible if the guest agrees. However, according to the data protection law, a confirmation does not constitute consent, as it was not voluntary. If the guest does not want to disclose their data, they are not allowed to stay at the restaurant. The guest is also not offered any alternative, as the same registration is necessary in the other places.
The restaurant owner can now rely on the fact that he is forced by regulation to collect the data of guests. The problem, however, is that the regulation only regulates, which data the business must provide about his guests to the health authority. The fact that he is also allowed to collect the guest’s data is not regulated.
The legislator has approximately 2 weeks (until the planned end of the lockdown) to reformulate the regulation and to adapt it to the needs arising from data protection jurisprudence.
It remains to be hoped that this project will succeed. A refusal of this information obligation (e.g. on the basis of data not available) to the health authority would have cost the host a fine of 1.450 euros.