Author: András Jóri

 

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

2.Paragraph 1 shall not apply if one of the following applies:

(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

(b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorised by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject;

(c) processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent;

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;

(e) processing relates to personal data which are manifestly made public by the data subject;

(f) processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;

(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;

(h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

(i) processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;

(j) processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.

3.Personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies.

4.Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.

 

I. Preliminary remarks

Special categories of data, or, as the literature and even the EDPB/Art. 29 WP frequently refers to these categories, “sensitive”[1] data are those data that carry information that in itself might be harmful for the data subject. As opposed to non-sensitive data, the risk of processing these data is not only that by linking them the controller might build up a personality profile, but also that the processing might involve direct risk. That risk was materialized during the 20th century Europe, with the persecution of various groups based on ethnicity, religion or political views.

Special categories of data can, therefore, be regarded as a “bridge” between the traditional legal regulation of secrets (where access by unauthorized third parties in itself might pose risk to the person, because of the very content of those data) and data protection law (where the protection is content-neutral, based on the link to the data subject, and the risk posed by combining and processing otherwise trivial data by digital means). In this provision, data protection law covers the processing of intimate information and, while generally content-neutral, defines the protected categories of data based on their information content. The specific risks identified by the legislator relating to the processing of special categories of data are enumerated by recital 75, in the context of Art. 25 (→ mn. 3).

We agree with Simitis, that the intrusive/intimate nature of certain personal data is situational and defining the set of cases when the data subjects are entitled to a higher level of protection only by the information content of the data results in a one-dimensional representation of social reality[2]. In some contexts, those personal data deemed irrelevant might gain significance; and, in others, information that might at first sight qualify as sensitive may bear no such meaning for the observer or the data subject.

Despite the above theoretical concerns, European data protection law has traditionally enumerated those data that are considered as belonging to the set of “special categories” (“sensitive”) personal data. The list set out by the legislator might also be criticized: an example might be financial data. Many consider data relating to wealth or income as sensitive information; still, under the GDPR these do not qualify as data falling into a “special category”. These data might be subject to specific regulation (e.g. that of banking secrets and insurance secrets), creating an interplay between data protection law and law regulating secrets in the financial or insurance sector.

In many cases, the GDPR refers to the “the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural person” when setting out obligations for the controllers. In these cases, the fact that the processed data are falling into a special category bears relevance (see recital 75). These provisions are: Art. 24, setting out the obligation of the controller to implement appropriate technical and organisational measures; Art. 25 on data protection by design; Art. 32 on data security measures; Art. 35 on data protection impact assessments (also making a direct reference to the category); and Art. 36 on prior consultation. The term “special categories of personal data” is expressly referred to by Art. 22 on automated individual decision-making, Art. 27 on representatives of controllers or processors not established in the Union, Art. 30 on the records of processing activities, Art. 35 on data protection impact assessments, Art. 37 on the designation of the data protection officer and Art. 47 on binding corporate rules.

 

 

 

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[1]See e.g. the Advice paper on special categories of data (“sensitive data”) issued by the Art. 29 WP, Ref. Ares (2011) 444105 – 20/04/2011.

[2]Simitis in Dammann, EG-Datenschutzrichtlinie – Kommentar, Baden-Baden 1997, p. 148.