VPB 70.54: Opinion 051124 of the Federal Office of Justice of November 24, 2005:
Data protection. Division of powers between the Confederation and the cantons. Applicability of the FADP. Qualification of private persons as organs of the community. Supervision of the Federal Data Protection Commissioner (FDPIC). Cantonal and communal Spitex services.
Art. 2 para. 1 let. a, Art. 29, Art. 37 FADP.
- The cantons are exclusively responsible for regulating data protection and ensuring effective data protection supervision in cantonal sovereign areas (item 1).
- Private persons are not only to be qualified as organs of the community if they are superior to other private persons by law. Other criteria can also lead to such a qualification, e.g. acting on the basis of a performance mandate or being financed by the community to a considerable extent (para. 3).
- If private individuals are to be regarded as organs of a cantonal or communal community, data protection supervision is the responsibility of the competent cantonal or communal authorities. If necessary, the applicable substantive data protection law must be determined by way of gap-filling (item 4).
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