Author: András Jóri

(13) ‘Genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

I. Preliminary remarks

Genetic data is a category defined by the GDPR that is relevant in the context of the application of Art. 9, as Art. 9 para. 1 sets out the ban on the processing of – among others – genetic data (→ Art. 9 mn. 11) The set of genetic data might in practice overlap with the categories of biometric data and health data, two other categories relevant when applying Art 9. Apart from the definition and the preamble, the term “genetic data” appears only in Art. 9.

II. Legislative history

The DPD contained no reference to genetic data. In the Comm-P, a definition capturing a wide set of data was proposed: genetic data would have meant “all data, of whatever type, concerning the characteristics of an individual which are inherited or acquired during early prenatal development”. In the Comm-P, the term appeared in the context of data protection impact assessments as well. In the final text of Art. 35, however, the GDPR refers to special categories of personal data in general (→ Art. 35 mn. 18).

III. Analysis

1. “Personal data relating to the inherited or acquired genetic characteristics of a natural person”

The text defines genetic data as a subset of personal data. In the context of genetic data, a unique feature is that such data may relate not only to the data subject, but other individuals as well. For a discussion of personal data relating to multiple data subjects, see the definition of personal data (→ Art 4 no. 1 mn. 20).

As to “genetic charasteristics”, according to the literature “a gene is the basic physical and functional unit of heredity. Genes are responsible for coding the proteins that are essential to the construction and functioning of an organism. Genetic information can broadly be understood to include any information relating to genes: information about what genes are, their number, variety, sequence or arrangement in a particular context, their function, the impact of that function (or nonfunction) upon the organism itself, and, relatedly, information about how gene expression affects the phenotype.” Personal data relating to “genetic charastericstics”, therefore, means all such generic information that qualify as personal data, and fulfils the further conditions as set out by the definition. Note, that information on phenotype alone does not qualify as genetic data according to the definition (see also → mn. 5).

2. “Which give unique information about the physiology or the health of that natural person”

As referred to above, genetic information “include any information to the genes”; however, the definition restricts the scope of “genetic data” to those items of information that are “unique” and that relate to the physiology or the health of the data subject. The original definition proposed by the Comm-P would have captured all characteristics of a person that are inherited (or acquired during early natal development). While the originally proposed definition would have included such features as skin or hair color, the GDPR qualifies only information relating to the physiology or health as genetic data: characteristics, such as appearance and so forth, are not covered by the definition. Furthermore, if the data give unique information abouth the health of the data subject, they qualify as data concerning health according to Art. 4 no. 15 (→ mn. 4).

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