The AOB immediately contacted the Federal Ministry of Labour, Social
Affairs and Consumer Protection, the main office of the Federal Social
AOB initiates comprehensive investigation
Welfare Office and ÖSB. The AOB’s main message was as follows: This
“care agreement” undermines the fundamental right to data protection and privacy. The confusing structure of the agreement obfuscates
the rights of the party involved and thus erodes guarantees provided
under the Constitution. Insofar, the refusal to sign such an agreement
cannot justify a cancellation of unemployment benefits or emergency
financial aid.
The point of origin of the AOB’s legal evaluation was the Labour and
Health Act, which presumes that participation in health programmes and, in particular, consent to disclosure of health information is
Insufficient clarification
and circumvention of
data protection and
privacy guarantees
based on a voluntary action. The participating authorities and ÖSB
must clearly point out this legal situation. The written care agreement
for a health programme must specifically, but not exclusively contain
unambiguous (!) information about those rights of potential participants. The AOB made it clear that the fulfilment of this duty of clarification is the basic requirement that a consent to disclosure of personal
information can become legally effective at all.
The AOB emphasised two additional points: On one hand, sections
AOB demands changes
of the agreement that refer to the provision of care services must be
clearly separated from consent declarations regarding the use and disclosure of personal data. And on the other hand, one would have to
phrase the cited consent declarations in such a way that a differentiated treatment of consents is possible: The participants in the health
programme should, for example be able to permit use of personal
information by ÖSB, but prohibit disclosure to other parties in whole
or in part. This is the only way to ensure that the individual can profit
from the health programme, while at the same time retaining authority over his/her private sphere.
From the AOB’s perspective, the fundamental right to data protection
and privacy in the present context dictates that the Federal Ministry of
Labour, Social Affairs and Consumer Protection, as the highest authority in the administration of the labour market, and all other cooperation partners of ÖSB must ensure that care agreements are worded
in such a way that all participants of the current health programme
are actively in a position to assert their right to data protection and
the preservation of their private sphere.
83
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