Data Protection vs. Anti-Doping Measures - Advocate General Ćapeta Perspective
Advocate General Tamara Ćapeta's (Ćapeta) recent opinion offers a unique perspective on the clash between data protection and anti-doping regulations.
Ćapeta suggests that if the primary purpose is deterrence, the publication of personal data by a national anti-doping authority on the internet may not be considered as a breach of the General Data Protection Regulation (GDPR).
In the case C-115/22, the Austrian Anti-Doping Legal Committee (ÖADR) penalized the athlete (Austrian professional middle-distance) by invalidating her results, revoking entry fees, prize money, and banning her from participating in sporting competitions of any kind for a period of four years. This decision was upheld by the ÖADR and the Independent Arbitration Committee, Austria (USK). In addition, the Independent Anti-Doping Agency (NADA) publicly disclosed the athlete's name, violations, and suspension period on its website.
Ćapeta focused on two main aspects of the given issue. Firstly, Ćapeta established that the USK qualifies as a 'court or tribunal,' within the meaning of Article 267 TFEU. Secondly, Ćapeta argued that the GDPR may not apply in these circumstances, because anti-doping rules primarily serve the social and educational aspects of sports, not the economic ones. Ćapeta came to conclusion, that without even an indirect link between the anti-doping policies and EU law, the GDPR cannot regulate such processing activities.
As an alternative perspective, Ćapeta proposed that the GDPR allows the processing of personal data without need for any individualized proportionality assessment when there's a predefined preventive context. That’s why Ćapeta concluded, that the interference with the rights of professional athletes brought about by public disclosure can be justified by the preventive aim of deterring young athletes from committing doping offences and of informing relevant stakeholders.
In Ćapeta’s opinion, only offline publication would bypass the obligation to inform the public properly and that in today's digital age, internet-based publication is essential to meet the obligation of informing the public effectively. That’s why Ćapeta concluded, that disclosing the athlete’s name, the anti-doping rule violation at issue and the suspension imposed on her on the publicly available website of a national anti-doping authority is, during the time of her suspension, adequate and necessary for achieving the preventive function of deterrence and informing stakeholders.
It's important to note that the Ćapeta’s opinion is not binding on the Court of Justice and that it is their role to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
Article provided by INPLP member: Miroslav Chlipala (BCH Advokáti Chlipala, Slovakia)
Dr. Tobias Höllwarth (Managing Director INPLP)