The Austrian Post stores personal data of several million persons. It has been conducting anonymized opinion polls, whereby it enquired about some sociodemographic criteria like sex, age, permanent residence, type of residence (flat, house, etc.), education as well as interest to receive election advertising. Based on these criteria, the Austria Post forms „marketing groups” of around 100 persons, for which it calculates average probabilities of certains „affinities”. These affinities include probabilities of a person’s preferences regarding investments, bio products, donations, distance selling. They also contain a so called „political party affinity”, i.e. the probability of a person’s alignment with a political party’s program and values. In a final step, each individual person within these marketing groups is assigned specific affinities.
The plaintiff, an Austrian lawyer, filed suit against the Austrian Post on the basis of Art. 82 GDPR for infringing his rights under the GDPR and claimed 2.500 euros of damages.
The court found that the assignment of a „political party affinity” to an individual person qualifies not only as personal data because it reflects a political opinion that is directly linked to a person, but also a special category of personal data according to Art. 9 GDPR.
The court further held that the Austrian Post collected and processed this special category of personal data without any legal basis, in particular without the plaintiff’s explicit consent. IT also did not inform the plaintiff about such processing. (nota MMB: LG Feldkirch, decizia din 7 august 2019 – 57 Cg 30/19b, în primă instanță)
(Austria: First Award of Immaterial Damages under GDPR, Computer Law Review International, 2019, la p. 147)