Court of Justice of the European Union: the online publication of the names of professional athletes who have breached anti-doping rules does not infringe Union law.

The Austrian Anti-Doping Commission (ÖADR) and the Austrian Independent Arbitration Commission (USK) have banned four athletes from national and international competitions for a fixed period or for life, for breaching anti-doping rules. Under Austrian law, these bans are published on the website of the Austrian Anti-Doping Agency (NADA Austria).

 

The publication includes the first name and surname of the athlete concerned, the sport practised, the anti-doping rule violation committed, the sanction imposed, and the start and end dates of the sanction. The ÖADR, in turn, publishes this information on its own website, along with the name of any prohibited substance involved.

 

The four athletes are challenging before the Austrian Federal Administrative Court the publication of their names and the sports concerned on the websites in question. In particular, they consider that the information published falls within the concept of ‘health data’, the processing of which is, in principle, prohibited, as well as personal data relating to criminal convictions and offences, the processing of which may, in principle, only be carried out under the supervision of a public authority. Furthermore, they argue that the indiscriminate publication regime in place in Austria is incompatible with the General Data Protection Regulation (GDPR).

 

The Federal Administrative Court has referred the matter to the Court of Justice for a preliminary ruling. The Court replies, first of all, that the published information does not, in principle, fall within the concept of ‘health data’, unless the name or category of the prohibited substance or method at issue in that breach is mentioned in the publication and that mention, together with other information relating to the data subject, is such as to reveal, even indirectly, through a process of comparison or deduction, information on that person’s past, present or future physical or mental state of health.

 

The Court then states that personal data relating to violations provided for by national anti-doping legislation and to the sanctions imposed for such violations do not constitute personal data relating to criminal convictions and offences. Indeed, such violations and sanctions concern only a specific group of persons, namely athletes, in the same way as disciplinary sanctions intended to ensure that members of a group comply with that group’s own rules of conduct.

 

Finally, the Court rules that the GDPR does not, in principle, preclude the publication on the internet of the names of professional athletes who have breached anti-doping rules, the duration of the ban imposed on them and the reasons for that ban. The fight against doping, the aim of which is to preserve the fair, honest and impartial conduct of sporting competition, to ensure equal opportunities among athletes, to protect their health and to uphold ethical values in sport, constitutes an objective of general interest. The publication of anti-doping rule violations is capable of contributing to the achievement of that objective by helping to deter, prevent and ensure the effectiveness of sanctions. Furthermore, publication beyond a restricted circle of individuals does not appear to go beyond what is necessary to achieve that objective and, in particular, to inform those indirectly affected by the sanction, whose interests are also at stake, such as the current or potential employers and sponsors of the sanctioned professional athlete. However, the body responsible for publication must be able to carry out an individual balancing of the interests at stake prior to publication to ensure that such publication is carried out in accordance with the GDPR and, in particular, the principle of proportionality. Furthermore, an athlete concerned must be able to lodge a prior complaint with the competent data protection authority where there are concrete indications that publication concerning them is imminent or will take place in the near future.