This series provides more detailed insight into the General Data Protection Regulation, which was published on 4 May 2016 and must be complied with by 25 May 2018.
This issue focuses on the processing of special categories of data, such as health-related data. The GDPR provides additional protection for these types data, also called sensitive data.
Skip to the end for a quick overview of the main takeaways and to do's.
What are sensitive data?
The following data are considered sensitive:
- personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;
- genetic data;
- biometric data used for the purpose of uniquely identifying a natural person;
- data concerning health;
- data concerning a natural person's sex life or sexual orientation; and
- personal data relating to criminal convictions and offences or related security measures
Definitions of genetic data, biometric data and data concerning health
The GDPR contains the following definitions for genetic data, biometric data and data concerning health.
Genetic data: "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"
Biometric data: "personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data"
Data concerning health: "personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status"
Rules on the processing of sensitive data
Personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, 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.
The general rule is that the processing of the abovementioned special categories of personal data is prohibited.
However, this prohibition does not apply in the following cases:
(a) the data subject has expressly consented to the processing of his or her personal data for one or more specified purposes, except where European Union or Member State law provides that the prohibition 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 Article 9(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.
With regard to the exemption referred to under (h), sensitive data may be processed only by or under the responsibility of a professional subject to an obligation of professional secrecy under EU or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under EU or Member State law or rules established by national competent bodies.
Personal data relating to criminal convictions and offences or related security measures
Personal data relating to criminal convictions and offences or related security measures may only be processed under the control of an official authority or when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal conviction shall be kept only under the control of an official authority.
No harmonization regarding the processing of sensitive data
As indicated in a previous issue in this series, Member States may adopt additional legislation on the processing of sensitive data.
Takeaways and to do's
Categories of data considered to be sensitive
Processing of sensitive data
- personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;
- genetic data;
- biometric data used for the purpose of uniquely identifying a natural person;
- data concerning health;
- data concerning a natural person's sex life or sexual orientation; and
- personal data relating to criminal convictions and offences or related security measures
In principle prohibited but law provides for certain exceptions
To do's
- Analyse whether you are processing sensitive data
- Analyse whether you can rely on an exception for the processing of sensitive data
- Check whether there are specific national rules regarding the processing of sensitive data
- If you cannot rely on an exception (including a specific national rule), stop the processing
Relevant provisions
Recitals 10, 51, 52, 53 and 54
Articles 9 and 10
