Fundamental Rights Section
dentiality are allowable only for the predominantly justified protection of third-party interests.
For the use of data deemed especially protection-worthy, further restrictions are intended in
the quoted constitutional provision, among others that use be restricted to cases requiring
the 'protection of important public interests'. It is further explicitly ordered that the use of
data in the case of allowable exceptions be undertaken in the mildest possible manner required to attain the desired goal.
According to the legal definition of Sect. 4 point 2 of DSG 2000 all health data is to be regarded as 'sensitive' as well as 'especially protection-worthy'. These data are under a general restriction, which can be lifted only for the exceptions exhaustively listed in Section 9 of
the Datenschutzgesetz. In order to effect the legal situation thus created, Sect. 14 of DSG
2000 contains a detailed commitment to implementing procedures for data protection, including, in particular, the duty of ensuring the proper use of data.
The Ombudsman Board managed to trigger discussions in the investigation at issue on
preventing diagnosis data as basis of an order for transportation from being received by the
transport provider in the future. Instead, the data should be communicated directly to the
competent health insurance company, which can compare it with the transport invoice and
thus review the legality of the transport.
The respective electronic adjustments may only be made once the required legal bases has
been established. On the basis of the new Gesundheitstelematikgesetz (Law on the Use of
Telematics in the Health Sector) the so-called Gesundheitstelematikverordnung (Ordinance
on the Use of Telematics in the Health Sector) is being drafted. It might establish the necessary legal bases so that the indicated problem will soon belong to the past.
The Ombudsman Board will oversee this issue and push for a quick change in the current
state of affairs, which is undoubtedly far from satisfactory.
2.7.2
Inadmissible dissemination of data
(VA BD/10-BKA/06, Federal Pension Authority 2060/622)
The Federal Pension Authority considered Mr. H.'s letter dated January, 28 and posted on
January, 29 as complaint and subsequently forwarded the complainant's health data to the
Linz Regional Court, although the official notification rejecting the complainant's application
for care allowance was served upon him only on February, 5.
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