The obligation to secrecy (also professional secrecy) in the closer sense is the legal obligation of certain occupational groups pass them entrusted secrets on not on third. To be obligated both private ones (professional secrecy carriers) know, as well as office-holders of the state are obligated (so-called official secret).

In the broader sense the obligation to secrecy is closely linked, there with the data security the obligation to secrecy only not entrusted secrets, but also personal and other data, like e.g. Professional secrets to be subject can.

Purpose and legal bases

The professional secrecy in the closer sense serves directly the protection of the personal life and secret range of a person, whom occupational groups or certain national or private institutions determined themselves entrusted. Accordingly the professional secrecy protects the right to informational self-determination, which in Germany condition rank has. The right to informational self-determination as development of the general personality right was developed by constant iurisdiction of the Federal Constitutional Court from article 1 exp. 1 in connection with kind 2 exp. 1 of the Basic Law and formulated for the first time 1983 in the so-called census judgement.

In Germany the legislator regulated the obligation to secrecy with strongest it the means the available, i.e. the menace of money or imprisonment in "§ 203 of the penal code (injury of private secrets).

Besides an obligation to secrecy can result as Nebenpflicht directly and indirectly from civil contracts. Thus an obligation exists to the discretion for employees as Nebenpflicht of the work contract concerning operational secrets in accordance with "§ 242 of the German civil law book (faithful and faith).

For office-holders e.g. - for Germans - an official exists the obligation to the service discretion due to "§ 39 official right framework law (BRRG) in the official laws of the federation and the countries. In the German social right "§ 35 SGB I protect the social data in such a way specified, that are the information, which of the service providers of the social legislation over the insured ones and recipients of services are raised. For the range of the catholic church the church law book Codex Iuris Canonici (CIC) protects the personality right to protection of the privacy in Canon 220. For coworkers with contracts of employment after the work contract guidelines of the German Caritasverbands (AVR) "§ 5 AVR regulate the obligation to secrecy as special Dienstpflicht.

Condition-legal standards for certain occupational groups (occupation orders) regulate the obligation to secrecy for their range, e.g. for German attorneys "§ 43a exp. 2 Federal Law lawyer order.

Indirectly the professional secrecy serves also the operability of certain occupations themselves.

• Example: If the consultation is dependent on a bond of trust e.g. by a psychological Psychotherapeuten, this can develop only if the patient can rely on the fact that the entrusted information is not unauthorized passed on.

Be silent-requiring circle of acquaintances "§ 203 StGB

Obligated to the discretion are among other things the occupation members and their occupation aids (coworkers) of the following occupations:

• Belonging one of welfare-treating occupations, like physicians, dentists, pharmacists or members of another occupation of welfare, which requires nationally regulated training - e.g. Health and Krankenpfleger, old person male nurse and rescue assistant) and their aid (thus e.g. Medic and rescue medic).
• Attorneys (including the patent lawyers or defenders)
• Tax counsel, notaries,
• Before, family, educating or youth advisor as well as advisor for craze questions in a nationally recognized advisory board
• Members or assigned a recognized pregnancy conflict advisory board,
• nationally social workers and social paedagogue recognized,
• Coworker of an enterprise of the private ill, accident or life insurance or a private-medical clearing house,
• Seelsorger of nationally recognized religious communities (Beichtgeheimnis),
• Office-holder regarding them well-known official secrets,
• Person, who notices tasks or powers after the personnel agency right

Be silent requiring in the sense "§ 203 StGB is always the secret carrier personally, not the organization, in which it works. The criminal professional secrecy cannot be waived or weakened by instruction by Vorgesetzen, because the instruction power of an employer or an authority leader cannot jump over itself over criminal regulations. Due to the analogy prohibition in the German criminal law the listing cannot be extended. For example welfare practical men are not seized with the welfare-treating occupations. With the socially helping occupations for example diploma paedagogues and educators are not seized. This means that member of these occupational groups punishable with a break of the obligation to secrecy cannot make itself. Nevertheless have also member of these occupational groups the obligation to secrecy due to (work) contractual or other regulations to consider.

What falls under the professional

Regularly an obligation to secrecy exists regarding its that admits straight to the obligated one in its vocational characteristic entrusted or in other way became.

That concerns e.g. within the medical range all personal data and facts like e.g.

• the fact that at all a treatment relationship to a certain person existed,
• the kind of the injury or illness,
• the accident course of events, disease process etc.,
• the results of the investigation, the diagnostics and (suspicion) diagnosis,
• the accomplished measures,
• all remaining information, which admits to the aid during the treatment relationship became (e.g. Living and life situation, craze, sexual preferences, financial position, physical hygiene).

This applies, as far as the details conclusion on a certain, so that permit identifiable person, and also beyond the death of the patient/client.

Opposite whom does the professional secrecy

The professional secrecy applies opposite everyone. Those depend e.g. also member of a concerning (also of persons under age, whereby age and insight ability are to be considered here), occupation colleague and superior of the be silent-requiring, as far as these are not concerned with the treatment of the concrete case of the concerning, those own friends and relatives of the obligated one, the media and on legal regulations: Police, public prosecutor's office and court.

With the obligation to secrecy a right accompanies for refusal to give evidence before court in many cases, to which the obligated ones can appoint themselves (in Germany e.g. "§ 53 StPO in the criminal procedure or "§ 383 ZPO in the civil proceeding).

Articles in category "Obligation to secrecy"

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