The complaining party considered its right to confidentiality to have been violated, among other things, because it had set up a forwarding order with the respondent – a company providing postal services – and subsequently received a postal confirmation letter to which non-personalized advertising materials were enclosed, although it had prohibited the use of its personal data for third-party marketing purposes on the forwarding order form. The respondent stated in the investigation proceedings that the advertising materials were placed manually in the already pre-addressed envelope.
In the decision of June 21, 2022, GZ: D124.5388 (2022-0.191.287), the data protection authority first stated that the claim to secrecy under § 1 para. 1 DSG – unlike data subject rights under the GDPR – exists regardless of the type of data processing (conventional or automation-assisted).
However, the scope of application of Section 1 of the FADP also always presupposes the processing of personal data of the data subject. However, no personal data were processed in the process of manually inserting advertising materials into an envelope, which is why there is no processing operation relevant under data protection law. For the differentiation of different “processing” operations, the DPA referred to the Opinion of the Advocate General of 12 December 2013, verb. Rs. C-141/12 and C-372/12 under the insofar comparable legal situation under Directive 95/46/EC.
Since there were also no indications that personal data of the complaining party had been disclosed to third parties for their marketing purposes, the complaint was dismissed.
The decision is not legally binding.
Source: DSB Austria