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When Sensitive became Special

The GDPR aims to increase protection of personal data, promote accountability and transparency by data controllers and harmonize data protection laws across the EU.  Some personal data is given “extra” protection due to its sensitive nature and the GDPR calls this special category data.

Special category data is similar to the concept of sensitive personal data under the 1998 Act. The GDPR has expanded the category slightly by adding genetic and some biometric data in the definition. Another differentiating factor is that the GDPR definition does not include personal data relating to criminal offences and convictions, instead setting separate safeguards for this type of data in Article 10.

Under the GDPR special category data includes:

“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”

This type of data obviously has the potential to create higher risks to a person’s fundamental rights and freedoms. The GDPR therefore sets a higher bar for lawfully processing such special category data.

In order to lawfully process special category data, you must identify both a lawful basis under Article 6 and a separate condition for processing special category data under Article 9. They can be independent, in other words there is no requirement that they have to be linked, though in practice they often will be.

The GDPR allows Member States to introduce new conditions and limitations regarding the processing of genetic, biometric or health data. As such, the UK’s Data Protection Bill contains additional conditions and safeguards making clear that controllers processing this kind of data must give particular attention to measures taken to protect the information being processed. Before we know the detail of conditions for processing special category data in the UK, we shall have to wait for the final text of the Data Protection Bill.

The GDPR provides ten conditions for processing special category data to choose from, and lists them in Article 9(2):

(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.

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