In a penalty decision dated April 5, 2022, the data protection authority imposed a fine of EUR 3,300 in response to the unlawful processing of sensitive data (health data). The defendant processed health data of three subjects by accessing the data in the e-vaccination record to learn about the subjects’ vaccination status. The defendant performed the processing in her capacity as a practicing physician and was generally cleared for such queries. The processing was carried out without the knowledge and consent of the data subjects and could not otherwise be based on any of the remaining exceptional circumstances pursuant to Art. 9 par. 2 GDPR be supported.
The defendant argued that, as an employer, she was subject to a statutory duty of care under Section 1157 of the Austrian General Civil Code (ABGB) and that she only made the queries because she had been informed that one of her secretaries would be attending a planned family event. Therefore, in the interest of better risk assessment for her ordination, the defendant obtained information about the vaccination status of the affected individuals who also attended the party. At the outset, the data protection authority stated that the exceptional circumstance under Art. 9 par. 2 lit. h GDPR iVm § 1157 ABGB can in principle constitute a suitable legal basis. However, in the specific case, the processing was not carried out in accordance with the data processing principles. In any case, the specific processing was not necessary and was carried out contrary to the purpose. The defendant had already instructed her secretary, independent of the query, to test herself daily after the family party.
As a result, the data protection authority found a violation of Art. 5 par. 1 lit. a, b and c as well as Art. 9 para. 1 iVm Art. 83 par. 1 and 5 lit. a GDPR fixed.
Source: DSB Austria