EU Advocate General: Illegal to disclose substance used by doped athletes

Publishing online the names of professional athletes suspended for doping risks violating their privacy, especially if the information is not 'minimised', starting with the type of illegal substance detected. EU Advocate General Dean Spielmann, with the conclusions delivered yesterday in Luxembourg in Case C-474/24 - brought by four Austrian athletes against Nada, the anti-doping agency - enters into the always heated debate on the limits of the sedition for use of banned substances.

In Austria, Nada publishes online all cautionary measures (suspensions) and radiations of athletes - and their competitors in the offences - with the exception of 'particularly vulnerable persons and amateur athletes'. According to Spielmann, it is not so much at issue - in terms of GDPR compliance - the publication of the names of professional athletes who have tested (positive) for doping, but the violation of their sensitive health data linked to the substance used. This is because the substance discovered, if disclosed urbi et orbi, could 'reveal, even indirectly, information about the health status, including future health, of the athlete concerned', thus violating Article 9 of the GDPR.

The publicity of anti-doping activity, Spielmann writes, has the goal of deterrence (for potentially tempted athletes) as well as that of avoiding circumvention of the same law enforcement rules, but for both of these purposes it is not necessary to violate sensitive health data of the individual athlete. 'In my opinion, a publication by name, but limited to the relevant bodies and sports federations, accompanied, for instance, by a pseudonymised Internet publication, would achieve the two objectives pursued in a way that would be less damaging to the protection of personal data and in a way that would be more in line with the principle of data minimisation" writes the Advocate General, refuting the Nada argument that the publication of doping sanctions is entirely similar to the deontological sanctions of lawyers or health professions. This is in fact 'necessary because anyone can be a party to a lawsuit or a patient, whereas, in the context of doping, it is sufficient that the name of the athlete concerned is known in the sporting environment, by the sporting federations concerned, except in special cases to be assessed on a case-by-case basis'.