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Austria: Federal Administrative Court upholds DSB decision on access to traffic and location data

None of your business ('NOYB') announced, on 17 March 2023, that the Federal Administrative Court ('BVwG') in Case No. GZ: W274 2248601-1/14E upheld the decision of the Austrian data protection authority ('DSB') in regard to access to traffic and location data under Article 15 of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR').

Background to the case

In particular, the decision highlights that the original complaint related to a request for information regarding traffic and/or location data of the complainant. In particular, the decision clarifies that A1 Telekom Austria Group responded that it could not fulfill the request because the complainant, as a phone user, could not sufficiently prove that they alone used the phone. To this end, the DSB concluded that A1 Telekom had the right to refuse to provide the traffic data to the complainant, as the complainant could not be sufficiently identified.

Findings of the BVwG

Following the above, the decision explains that, per the terms of the contract, there was no prohibition on passing on, in whole or in part, or occasional use, of the mobile device by others. More specifically, the decision details that the BVwG concluded that A1 Telekom had no knowledge of the personal use or use of the terminal equipment otherwise, and based on the contract, had no authorisation to subject this use to a closer examination. Notably, the decision highlights that the affidavit provided by the complainant did not provide sufficient protection for A1 Telekom to provide the requested location data, noting that affidavits are not an express legal instrument in Austria.


In light of the above, the decision confirms that the BVwG upheld the decision of the DSB, highlighting that the BVwG shared the view that the traffic and location data from the contractual relationship was not to be disclosed as there was not sufficient identification that the data actually and exclusively concerned the complainant. Finally, the NOYB highlighted that it will file an appeal of the decision. 

You can read the press release here and the decision, only available in German, here.