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Aufgrund des Datenschutzgesetzes John Edwards
30 March 2015


The rush to judgment in the Germanwings air crash tragedy is unseemly and precipitous, but entirely predictable and understandable.

Early reports suggested that the co-pilot Andreas Lubitz had a mental illness that could have been a factor in a decision to deliberately murder 149 others while taking his own life. Then we heard that he had split from his girlfriend and might have had other medical conditions that could have robbed him of his vocation - adding to the picture of a disturbed and suicidal young man who should never have been allowed at the controls of a passenger aircraft.

And now the news cycle has turned, inevitably, to examine other possible contributing factors. First up, did the German equivalent of the Privacy Act prevent necessary information about the risk the man presented from reaching the proper authorities who could have stopped him from flying, and saved 150 lives?

In case this is one phenomenon the Germans do not have a word for, we might be able to help, as we have plenty of experience with “BecauseOfThePrivacyAct”, or BOTPA, for short.

In the aftermath of any tragedy it will quickly become obvious that some people had information which, if they had acted on, or shared, or joined up with other information, might have allowed the tragedy to have been averted.  There will be many reasons why those dots were not connected, but in lieu of cool headed analysis and investigation, the default is to blame laws that might have got in the way. Cue Fox News, Bloomberg, and no doubt countless others’ immediate calls for a revision of Germany’s privacy laws, reported as ”the strictest in the world”.

All this despite the fact that the Time article itself links to a 1999 decision of a Frankfurt court which ruled that a doctor was legally obliged to reveal “confidential” patient information in circumstances which presented a real risk to the safety of others.

It’s not my place to speculate on the cause of the crash, or the state of German privacy laws and whether they need reforming, but New Zealanders ought to know that pilots operating here do so under a regulatory regime that prioritises safety. 

The Civil Aviation Act 1990 says anyone working in the aviation industry must be a “fit and proper person” and says that in determining what that means, the Director of Civil Aviation is entitled to take into account “any history of physical or mental health or serious behavioural problems.”

Medical practitioners are required to advise the Director of any change in the medical condition of any licence holder, and are protected from any legal liability for doing so.

These provisions take priority over the Privacy Act but, even if they did not, the Privacy Act also allows the use and disclosure of personal information without the consent of the individual where necessary to avoid a “serious threat”

New Zealand travellers can therefore be assured that the law works to protect pilots' and passengers' safety and privacy.


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