Social secrecy

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The term social secrecy or social data protection refers to the area-specific data protection regulations in German social law . Social secrecy specifies the basic right to informational self-determination for the area of ​​public social service providers and other bodies entrusted with the collection, processing or use of social data. Is regulated by law in Germany, the social secret in § 35 SGB I in conjunction with the §§ 67 ff. SGB X .

Relationship to general data protection law of the federal and state governments

Due to the subsidiarity clause in Section 1 (2) of the Federal Data Protection Act, the data protection standards of the Social Security Code take precedence over the general data protection law of the federal government as special data protection standards. The same applies accordingly to the data protection laws of the federal states, for example in North Rhine-Westphalia based on Section 2 (3) DSG NRW. The general data protection provisions only apply if there is no special provision in the Social Security Code.

Addressees of social data protection

The provisions of social data protection are aimed at the social service providers or the other bodies named in Section 35 SGB ​​I. The social service providers are named in Sections 18 to 29 SGB ​​I, e.g. B. the social security agencies , the youth welfare agencies , basic security for job seekers , social assistance . However, social data protection is only to be observed in connection with the performance of tasks according to the provisions of the Social Security Code. It does not apply, for example, to the employment relationships of employees at the above-mentioned offices or in independent commercial contractual relationships of the above-mentioned offices (e.g. rental contracts that a health insurance company has concluded for their business premises).

Every person from whom one of the above-mentioned bodies collects, processes or uses data is entitled to maintain social secrecy. This person does not need to have applied for social benefits. Social secrecy also applies to people whose data were randomly collected as bystanders by one of the above-mentioned bodies, e.g. B. if the names of a child's classmates are given to a youth welfare office.

Social data protection with independent organizations

The provisions of social data protection do not apply to independent agencies, such as B. the institutions of voluntary welfare , as the reverse of § 35 SGB ​​I results. The regulations also do not apply if independent providers provide services and the costs are reimbursed by the social service providers. Due to the church's right to self-determination, some of the churches in Germany have their own data protection regulations, such as B. the order on the ecclesiastical data protection of the Roman Catholic. Church. The obligation to protect personal rights also arises from secondary obligations of the contracts that independent organizations as providers of social services conclude with the service recipients. For certain professional groups, the criminal confidentiality obligation according to § 203 StGB also applies without restriction to independent institutions . In addition, Section 78 (1) sentence 1, sentence 2 SGB X extends social secrecy to third parties such as private service providers. However, this only applies if this data has been transmitted by a social service provider. Data that were collected by the independent institution itself are not recorded.

history

Originally, social secrecy referred to a special official secret that was incumbent on the social benefit providers vis-à-vis their insured persons and benefit recipients. Their personal data - if they were to be regarded as confidential - should be protected from abuse by social secrecy.

Recipients of social benefits should not be placed worse off with regard to the protection of secrecy than people who were not dependent on social benefits.

The need for social secrecy was justified by the fact that social service providers sometimes need extremely detailed and intimate information in order to fulfill their tasks. For example, the health insurance companies collect and save health data from the people they insure. Social secrecy is intended to ensure that this data is not passed on to unauthorized persons, for example in the context of requests for official and mutual assistance within the administration or to other offices outside the administration.

In the 1980s, the understanding of data protection and thus also of social secrecy changed in Germany : In the so-called census judgment, the Federal Constitutional Court made it clear that there is no more irrelevant information under the conditions of electronic data processing. Any piece of information that is insignificant when viewed in isolation can suddenly acquire meaning in the context of other information. Since then, it is no longer decisive for data protection whether or not information is secret.

The legislature then redefined the concept of social secrecy in Section 35 of Book I of the Social Code. Today, social secrecy is the right of the individual that the social data concerning him is not collected, stored, processed, changed, transmitted, deleted and used by the social service providers without authorization. Whether this data is secret or public is irrelevant for social secrecy.

literature

  • Utz Krahmer (Ed.): Social data protection according to SGB I and X. Comment. 3rd, revised edition. Luchterhand, Cologne et al. 2011, ISBN 978-3-472-07865-4 .