International data exchange in the fight against doping

The mission of the World Anti-Doping Agency (WADA) is to coordinate and support all measures aimed at combating doping. As WADA also collects data for this purpose in Switzerland, we have analysed the activities carried out by WADA which fall within the scope of the Swiss Data Protection Act. We have come to the conclusion that in certain areas WADA cannot be excluded from the application of the FADP. As a result, we have suggested that during the revision of the Sports Promotion Act, a legal basis be established in order to simplify international cooperation in the fight against doping.

WADA performs three essential tasks in its fight against doping. First, it acts as a clearing house for data and the results of doping tests carried out on athletes at the international and national levels. In this capacity, it receives all the results from both in-competition and out-of-competition tests carried out on athletes that have been assigned to it. Second, it carries out independent doping checks and coordinates such activities. Third, it operates a central electronic database in which the personal profiles of all athletes registered with it are stored (including their health and doping history). We have examined these three areas in detail, and our conclusions are set out in an opinion prepared for WADA as this falls within our sphere of competence and because WADA falls under the Swiss FADP.

The application of the FADP, and thus the competence of the FDPIC, are subject to the territoriality principle. This means that the FADP only applies to data that is actually processed in Switzerland. If there is an international dimension to the data processing, however, the data subject may, according to the Private International Law Act, choose between the law of the country in which the infringing party is habitually resident or domiciled, and the law of the country in which the consequences of the damaging act occurred. This is subject to evidence being provided that the liable party must have expected the effect of his act to occur in that country. Thus, it is virtually impossible for data processors to obtain data protection advantages by transferring their headquarters abroad in order to come under the laws of that country. It was against this background that we had to examine whether, and to what extent, WADA fell within the scope of the FADP in the three areas of activity mentioned above.

In its capacity as a clearing house, WADA receives from the national anti-doping organizations (for example in Switzerland) particularly sensitive personal data (generally test results) at its headquarters in Canada. The FADP states that a data transfer is only permissible if the legislation in the foreign country offers an adequate level of protection or if adequate protection may be guaranteed by other means. As WADA is a non-commercial organization and that Canada’s data protection law for non-commercial institutions does not provide an adequate level of protection, Swiss anti-doping organizations that intend to transfer data to Canada must themselves ensure that an adequate level of data protection is provided, for instance by means of a contract with WADA. By contrast, data sent in the reverse direction, i.e. from Canada to Switzerland, are not subject to the Swiss data protection regime.

The anti-doping tests carried out by WADA automatically imply the processing of personal data. Thus, any such tests carried out in Switzerland fall under Swiss data protection laws.

As WADA operates its electronic database (ADAMS) exclusively in Canada, and as the data processing activities it carries out do not take place in Switzerland, Swiss data protection laws do not apply.

During our investigation we came to the overall conclusion that WADA is not exempt in all circumstances from the provisions of the Swiss Data Protection Act. In order to facilitate international cooperation in the area of anti-doping tests and international data transfers in the fight against doping, we have therefore suggested that an appropriate legal basis be created during the revision of the Sports Promotion Act (cf. also paragraph 1.5.4).

Last modification 30.06.2008

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