Court case W291 2298748-1 – Court Ruling (Austria, 2025)

A data subject wished to be addressed in a gender-neutral way and claimed they were misgendered by two companies (the controllers) in profile settings, tickets, and train announcements. They initially sent a tweet to one of the involved controllers asking whether gender-neutral options would be available and later filed a complaint with the Equal Treatment Commission and the Austrian Data Protection Authority (DSB), claiming a violation of their right under Article 16 GDPR. The DPA rejected the complaint, arguing that the data subject had not submitted a formal request for rectification to the controllers. The complainant then appealed to the Federal Administrative Court. The Court dismissed the appeal, holding that there was no violation of the GDPR because the data subject had not submitted a formal request for rectification. Article 16 GDPR requires a clear and specific request for correction, and vague or indirect statements, such as tweets or general demands for a change of the controller’s practice, do not satisfy this requirement. During the proceedings, it became clear that the data subject’s statements, primarily concerned the implementation of a future change of the controller’s practice to allow a gender-neutral option for all users, rather than a concrete request to correct their own personal data. In addition, some corrections had already been made to the data subject’s profile and invoices, while oral misgendering in trains and via loudspeaker announcements was found to fall outside the scope of the GDPR, as such statements were not stored in any personal data filing system. Finally, the Court noted that the minutes of the Equal Treatment Commission hearing could not be relied upon as full proof, as the hearing had been recorded only in audio form and not documented in accordance with the requirements of [https://www.ris.bka.gv.at/Dokumente/Erv/ERV_1991_51/ERV_1991_51.pdf Austrian administrative procedure law (AVG).] Statements made during the Equal Treatment Commission proceedings therefore did not constitute a formal exercise of the right to rectification under Article 16 GDPR.