First to the Disclosure privilege during order processing:
aa) First of all, the lower court must be agreed that Art. 14 DPA limits the scope of application of Art. 12 (2) c DPA – and not vice versa. The legal disclosure privilege of Art. 14 FADP, which permits the disclosure of personal data to “third parties” for the purpose of outsourcing, also applies if the data in question may not be disclosed to other “third parties” within the meaning of the FADP under other circumstances – for example, in the case of Art. 12 (2) (c) FADP. This follows from the position of the agent under Art. 14 DPA, which is comparable to that of an employee in terms of data protection law (Thomas Brändli, Outsourcing – Vertrags‑, Arbeits- und Bankrecht, Diss. Bern 2001, p. 213). It can therefore be stated with the lower court that the legislator did not intend to equate the third parties entrusted with external data processing within the meaning of Art. 14 FADP with the third parties mentioned in Art. 12 Para. 2 lit. c FADP (and numerous other provisions of this law, cf. the list in Brändli, loc. cit.). Thus, the prohibition of the disclosure of particularly sensitive personal data and personality profiles pursuant to Art. 12 Para. 2 lit. c FADP does not apply in the context of Art. 14 FADP, as the latter provision is a lex specialis to the former (Rampini in Basler Kommentar zum Datenschutzgesetz, 2nd ed., Basel 2006, N 18 on Art. 14 with references to the doctrine; id. N 15 on Art. 12).
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