DPA case GZ: 2022-0.332.606 vom 8. Juni 2022 (Verfahrenszahl: DSB-D124.4108) – Dismissed (Austria, 2022)

The data subject had a phone call via Whatsapp with a friend (the controller) in which she confessed to misconduct against her ex partner as well as to having had an abortion. She was unaware that the phone call was recorded and later on forwarded to the ex partner and other friends of the data subject. The data subject filed a complaint with the Austrian DPA alleging a breach of her right to data protection and secrecy by recording and disseminating a phone call conversation without her consent. First, the Austrian DPA had to determine whether the GDPR was applicable. The DPA checked whether the material scope was met, in particular whether the case fell under the household exception found in Article 2(2)(c) GDPR. According to this provision, the GDPR does not apply to the processing of personal data by natural persons to carry out exclusively personal or family activities. The absence of any reference to a professional or economic activity was considered as an important factor. The DPA held that the concept of "family" was not to be interpreted strictly in accordance with family law, but also included other relationships considered as "family" by the general public, regardless of marriage and parenthood. In this respect, it was irrelevant whether there was a formal bond or whether personal relationships between the parties existed on a purely informal basis. The DPA noted that Recital 18 GDPR describes the use of social networks and online activities as part of a personal or family activity. In this case, the data subject had a phone call over the private messaging platform, Whatsapp. Despite extensive investigations, the DPA found no indications that this data processing was in any way connected to a professional or economic activity. The decisive factor was that the data processing was an exclusively private matter within a limited circle of acquaintances. Further, the DPA decided whether [https://www.ris.bka.gv.at/eli/bgbl/i/1999/165/A1P1/NOR40139563 Sect