The protection of genetic data from a legal perspective:

The focus of the legal debate on the protection of people's genetic data is in criminal, labor and insurance law.

In criminal proceedings, molecular genetic analysis is used in order to identify offenders' biological tracks. The state saves the data, which is protected under constitutional law. The European Convention on Human Rights includes the human right to a private and family life. According to the law of the European Court of Human Rights, genetic data counts as a part of private life and is protected under this provision. If the saving or use of such data is unjustified, the state can ultimately be "punished" by this court.

Employers and insurers can also misuse genetic data by using it to predict certain illnesses.

Due to the increased risk of susceptibility to diseases, employees or insurance policy holders are threatened with the danger of being discriminated against in the workforce or not being able to find "affordable" health insurance premiums. Legal regulations that protected against this type of discrimination are found in the Data Protection Act. According to this law, every human has the right to privacy of information, which includes information that is contained in DNA. More important is the Gene Technology Act. The law recognizes the potential abuse from employers and insurers, and forbids billing (potential) employees or insurance policy holders based on the results of their genetic analysis. It is also forbidden to demand bodily substances for the purposes of genetic analysis or to use randomly received or secretly determined data. Employers or insurers who do not abide by this law are threatened with a penalty of up to €36,300.

In conclusion, a comprehensive interpretation of the relevant legal opinions would be outside of the scope of this paper. Since the legislation in this area lags a bit behind the science, the insight of the students of the HLFS Ursprung, under the direction of Konrad Steiner, may provide food for thought to search the current laws for loopholes and necessary legal improvements

Author: Wolfgang Gappmayer is a trainee attorney in Vienna. As a student at the HLFS Ursprung, he was a member of the team that worked on the project "Genetic Technology at the School" in the 1997-98 school year.

European Convention on Human Rights,

Federal Law Nr. 210/1958 last amended in Federal Law III Nr. 30/1998/p>

Article 8 - Law Respecting Private and Family Life

(1)Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Data Protection Act 2000

Federal Law I Nr. 165/1999

Article 1 Federal Act Concerning the Protection of Personal Data

§ 1.(1) Everybody shall have the right to secrecy for the personal data concerning him, especially with regard to his private and family life, insofar as he has an interest deserving such protection. Such an interest is precluded when data cannot be subject to the right to secrecy due to their general availability or because they cannot be traced back to the data subject.

Gene Technology Act

Federal Law Gazette Nr. 510/1994 last amended Federal Law Gazette I Nr. 127/2005
Prohibits the collection and use of data from genetic analysis for certain purposes

Art.1 § 67. It is forbidden for employers and insurers including their agents and employees to collect, require, accept or otherwise exploit the genetic analysis of employees, job applicants, or insurance policy holders or insurance agents. This prohibition also includes the demand to give up and accept bodily substances for genetic analysis.