EVOLUTION OF REGULATIONS for data protection at European level
By Mugurel Olariu, RPD protectie date
The European Data Protection Board (EDPB) held a series of five online plenary sessions in the context of the COVID -19 pandemic in April on 3, 7, 14, 21 and 241, resulting in the adoption of two Guides, namely:
Guidelines 03/2020 on the processing of data concerning health for the purpose of scientific research in the context of the COVID-19 outbreak
Through this Guide, the EDPB sought to clarify issues regarding the use of health data, in particular ensuring the rights of data subjects, the legal basis for processing, the subsequent use of data for scientific research, and the transfer of data to third countries or international organizations.
In summary, we present the main findings of these guidelines:
1. The GDPR provides special rules for the processing of health data for the purpose of scientific research that are also applicable in the context of the COVID-19 pandemic.
2. The national legislator of each Member State may enact specific laws pursuant to Article (9) (2) (i) and (j) GDPR to enable the processing of health data for scientific research purposes. The processing of health data for the purpose of scientific research must also be covered by one of the legal bases in Article 6 (1) GDPR. Therefore, the conditions and the extent for such processing varies depending on the enacted laws of the particular member state.
3. All enacted laws based on Article (9) (2) (i) and (j) GDPR must be interpreted in the light of the principles pursuant to Article 5 GDPR and in consideration of the jurisprudence of the ECJ. In particular, derogations and limitations in relation to the protection of data provided in Article 9 (2) (j) and Article 89 (2) GDPR must apply only in so far as is strictly necessary.
4. Considering the processing risks in the context of the COVID-19 outbreak, high emphasise must be put on compliance with Article 5 (1) (f), Article 32 (1) and Article 89 (1) GDPR. There must be an assessment if a Data Protection Impact A pursuant to Article 35 GDPR has to be carried out.
5. Storage periods (timelines) shall be set and must be proportionate. In order to define such storage periods, criteria such as the length and the purpose of the research should be taken into account. National provisions may stipulate rules concerning the storage period as well and must therefore be considered.
6. In principle, situations as the current COVID-19 outbreak do not suspend or restrict the possibility of data subjects to exercise their rights pursuant to Article 12 to 22 GDPR. However, Article 89 (2) GDPR allows the national legislator to restrict (some) of the data subject’s rights as set in Chapter 3 of the GDPR. Because of this, the restrictions of the rights of data subjects may vary depending on the enacted laws of the particular Member State.
7. With respect to international transfers, in the absence of an adequacy decision pursuant to Article 45 (3) GDPR or appropriate safeguards pursuant to Article 46 GDPR, public authorities and private entities may rely upon the applicable derogations pursuant to Article 49 GDPR. However, the derogations of Article 49 GDPR do have exceptional character only2.
Guidelines 04/2020 on the use of location data and contact tracing tools in the context of the COVID-19 outbreak
The EDPB aims to highlight the conditions and principles of the proportional use of location data in order to monitor the spread of the virus and the detection tools to notify people close to other people detected as infected. It is also emphasized that the use of this data must be done voluntarily by each person and that the movements of that person must not be monitored, and the principles of necessity and proportionality must be respected in establishing the measures for this period.
The Annex provides a CONTACT TRACING APPLICATIONS ANALYSIS GUIDE, which after a disclaimer and a summary section, defines the important terms, namely contact, location data, interaction, virus carrier and contact tracing.
In the following sections, the general characteristics, purposes, functional characteristics, data conditioning, technical properties of applications, security requirements and, respectively, protection of personal data and privacy of natural persons. This last section are specified in separate sub-sections covers 17 guidelines for an application whose sole purpose is to track contacts, 7 principles that apply only when the application sends a list of contacts to the server, and 5 principles that apply only when the application sends to a server a list of own identifiers.
The world is facing a significant public health crisis that requires strong responses, which will have an impact beyond this emergency. Automated data processing and digital technologies can be key components in the fight against COVID-19. However, one should be wary of the “ratchet effect”. It is our responsibility to ensure that every measure taken in these extraordinary circumstances are necessary, limited in time, of minimal extent and subject to periodic and genuine review as well as to scientific evaluation.
The EDPB underlines that one should not have to choose between an efficient response to the current crisis and the protection of our fundamental rights: we can achieve both, and moreover data protection principles can play a very important role in the fight against the virus. European data protection law allows for the responsible use of personal data for health management purposes, while also ensuring that individual rights and freedoms are not eroded in the process3.
We conclude that during the COVID-19 pandemic, both the European supranational body – EDPB and the national supervisory authorities from EU are carrying out specialized activities to clarify issues related to new forms of data protection, respectively to monitor compliance with the General Data Protection Regulation.
————————————————————————————————————
1 https://edpb.europa.eu/edpb_ro
2 https://edpb.europa.eu/our-worktools/our-documents/guidelines/guidelines-032020-processing-data- concerning-health-purpose_en, page 12 – 13.
3 https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-042020-use-location-data-and-contact-tracing_en, page 10 – 19.
