In its decision of January 9, 2023, the data protection authority had to assess whether an information service provider operating an online encyclopedia had to delete the entry on the complaining party.
The complainant, who is an artist known to the general public in German-speaking countries and who has, among other things, acted in various capacities in film productions, all of which have a strong connection to Austria in common and whose other works are also primarily directed at German-speaking countries, has written an entry on the respondent’s online encyclopedia, which has been regularly updated by him. Other users or administrators have modified or deleted the complainant’s additions. Thereupon, the complainant filed a request for deletion of his entire entry. However, the respondent did not comply with this.
The data protection authority dismissed the complaint because it concluded that the complaining party’s right to erasure had not been violated.
The respondent is a non-profit foundation based in the USA that operates an online encyclopedia which processes the complainant’s personal data in an automated manner. The respondent also has a total of 38 national associations, some of which are based in the European Union (including Austria and Germany), and the individual national websites redirect users to the respondent’s platform either directly or via an intermediate step. This company offers information services about complainants, which are only available in two languages and are obviously primarily aimed at German-speaking countries. In this context, the fact that the complainant’s site is not available in English is particularly noteworthy. Since, in the overall view, the respondent has obviously oriented its services towards the European area – inter alia towards Austrian users – the factual and geographical scope of application for the GDPR is given (cf. Art. 3 par. 2 lit. a GDPR).
Based on the structural set-up as well as from the guidelines created by the online community, the respondent is at least a joint responsible party pursuant to Art. 4 Z 7 DSGVO in relation to the platform it operates, because it is responsible for financing as well as producing the infrastructure and has the final decision-making authority. The media privilege pursuant to Section 9 of the Austrian Data Protection Act also did not apply in the case at hand, especially since the minimum entrepreneurial structure, the corporate purpose of which is the content design of the website, which is carried out by an editorial team and a large number of employees or freelance media staff (cf. RIS-Justiz RS01298), does not exist. The respondent does not have an editor-in-chief or an editorial board, nor does it have similar institutions. A review of the content of the entries on the platform is carried out by the users and not by the respondent itself.
Since the contribution was factually correct, the complainant is a public figure and the public has an interest in information, and the same information is also publicly available on other websites on the Internet, as well as additional information about the complainant, the data protection authority came to the conclusion in the specific case that the respondent was right not to comply with the request for deletion, especially since the intensity of the interference can be classified as low and, moreover, the legitimate interest of the general public pursuant to Article 11 EU-GRC in access to information outweighs the interest of the complainant.
The decision has become final.
Source: DSB Austria