This case is a purely national case, regarding incomplete access under Article 15 GDPR to traffic and geolocation data processed by A1, the national phone carrier of Austria. The practices of A1 were accepted by the Austrian DPA (DSB) even prior to GDPR and also in codes of conduct under Article 40 GDPR.
In October 2021, the DSB issued a decision dismissing most parts of the complaint. It argued that the data subject could not prove that he was the sole user of his cell phone at all times and therefore would not be entitled to access on the geolocation data generated by his mobile phone. Regarding traffic data, the DSB held that the national rules implementing the e-Privacy Directive qualifies as lex specialis prevailing over Article 15 GDPR.
noyb filed an appeal against the somewhat puzzling decision of the DSB. The appeal is currently pending with the Federal Administrative Court (BVwG).
See the following links for details:
https://noyb.eu/en/a1-where-were-you-none-your-business
https://noyb.eu/en/cell-phone-data-not-personal-noyb-appeals-federal-ad…
| Data | Summary |
|---|---|
| 14.04.2023 | Appeal to VwGH |
| 24.03.2023 | VwGH decides on costs of inactivity lawsuit |
| 03.03.2023 | Erkenntnis BVwG BVwG take the view that the data subject could not proof that he was using his cell phone at all times. |
| 12.12.2022 | VwGH sets deadline for BVwG to decide Deadline for BVwG set at 3 Months. |
| 30.11.2022 | Fristsetzungsantrag an VwGH Request at Supreme Administrative Court to set a deadline for the BVwG to decide. |
| 22.11.2022 | Phone Call with BVwG Our appeal reached them on 24.11.2021 (Relevant for Fristsetzungsantrag) |
| 29.04.2022 | Additional short submission Brought the DSB's legal views re personal data in connection with terminal devices and burden of proof in the DSB's decision in C029-01 ("Geizhals"/Google LLC) to the attention of the court as it is in line with our legal view and quite the opposite as the DSB's extreme legal view in the case at hand. |
| 27.04.2022 | phone Call with BVwG Reference number at the BVwG: W 274 2248 601-1 |
| 12.11.2021 | appeal to BVwG |
| 22.10.2021 | A1 complies with part of DSB decion in favour of complainant |
| 15.10.2021 | decision by DSB |
| 26.05.2021 | reply II noyb |
| 05.10.2020 | reply I noyb |
| 02.10.2020 | Complaint filed |
| 21.09.2020 | reply A1 |
| 05.09.2020 | additional SAR reply A1 outside of procedure |
| 12.06.2020 | Complaint |