The registration of guests introduced by the City of Vienna on September 28, 2020 is a violation of data protection regulations. With this ordinance, the city wanted to extend the curfew from 10 p.m. for Viennese restaurants. The data protection authority approves a complainant. The decision refers to the Vienna Contact Tracing regulation as well as § 5 EpidemieG . However, the decision is not yet legally binding.
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.