Data Protection Law
COVID-19 data protection issues have left many businesses scrambling to keep on top of their compliance functions. Other businesses are largely ignoring data protection rules – which are you?!
Although not always at the front of minds in a crisis, data protection laws are there to be followed. As a result of COVID-19 data protection rules are being put to the test as a result of new information about individuals being collected in response to the pandemic. This often includes whether individual members of staff are displaying symptoms of the virus, the health status of staff and related individuals within the same household, the results of COVID-19 testing and the various locations individuals have visited since the start of the outbreak.
This new information collected constitutes “personal data” and sometimes falls within “special categories of personal data”, as provided for under Article 9 of the General Data Protection Regulation (EU) 2016/679 (GDPR) and applicable data protection laws.
Data protection regulators across the EU have issued statements and guidance referring to the effect of COVID-19 on data protection.
The European Data Protection Board (EDPB) has stated that data protection laws in the EU do not, and should not, hinder the response to COVID-19. Therefore organisations subject to such regulation should remain compliant with their obligations under GDPR. The EDPB has commented that the COVID-19 emergency is a “legal condition which may legitimise restrictions of freedoms provided these restrictions are proportionate and limited to the emergency period”. Whether this means governments have the right to police data protection compliance more or less strictly is unclear.
In the UK the Information Commissioner’s Office (ICO) has published guidance in the context of COVID-19 data protection. The ICO’s approach is sympathetic to the challenges faced by organisations:
“We understand that resources, whether they are finance or people, might be diverted away from usual compliance or information governance work. We won’t penalise organisations that we know need to prioritise other areas or adapt their usual approach during this extraordinary period”.
The ICO then goes on to mention that this does not extend as far as allowing infringement of statutory timescales but that they will endeavour to communicate to individuals bringing information rights requests that understandable delays may ensue.
The guidance should not be interpreted as a blank cheque by organisations to bend the rules relating to data protection compliance. It is only guidance and may not stand up in court. Additionally, the ICO does not grant any express relaxation of the rules. It has also stated, in line with the EDPB, that data protection should not stop organisations from being able to respond effectively to the crisis.
“Personal Data” and/or “Special Categories of Personal Data”
Information such as whether personnel have self-isolated, body temperature of personnel, visitors to premises and device location data will all be considered personal data. Where information also relates to the individual’s health, it would also fall within the sub-category of “special categories of personal data” – more on this below.
Legal Basis for Processing Personal Data
When processing COVID-19 personal data (that isn’t “special category data”) organisations may rely on the following legal bases:
Legitimate interests: for the purpose of the organisation’s legitimate interests in managing business continuity and the well-being of its staff.
Contractual necessity: necessary for an organisation’s performance of its obligations to its staff e.g. employees under their employment contract. Relevant obligations include ensuring the health, safety and well-being of employees.
Legal obligation: organisations have legal obligations relating to health and safety.
Legal Basis for Processing Special Categories of Personal Data
It is likely that when responding to the COVID-19 crisis organisations will collect special category data. This is because special category data, within the context of health, is defined as:
“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”.
This includes information on injury, disease, diagnosis, medical history, medical examination data, registration details with health service, appointment details and/or a number, symbol or other identifier assigned to an individual to uniquely identify them for health purposes.
Organisations can only process special category data on one or more of the following grounds:
Employment, social security and social protection obligations: certain obligations under employment, social security and social protection law may allow the processing of special category data. You need to be able to identify the legal obligation or right in question, either by reference to the specific legal provision or else by pointing to an appropriate source of advice or guidance that sets it out clearly. You can refer to a government website or to industry guidance that explains generally applicable employment obligations or rights. In this instance it would be sufficient to refer to the Health and Safety at Work (UK) etc. Act 1974 which states:
“it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his/her employees”.
For example, an employer will want to know whether, in light of COVID-19, an individual member of staff is a health risk in order to ensure the health, safety and welfare of that staff member and the other employees. This is likely to include collecting special category health data from a number of individuals. The employer can rely on employment, social security and social protection obligations to do this processing.
On the other hand, if the employer were to collect unnecessary data such as medical information beyond the scope of that required to diagnose COVID-19 within government guidance, or if the employer disclosed the names of people diagnosed when it was unnecessary to disclose such information then these actions would amount to infringements of data protection law.
Preventative or occupational medicine: occupational medicine is a specialist branch of medicine that focuses on the physical and mental wellbeing of employees in the workplace. Under GDPR the processing of special category data is permitted for the purposes of preventative or occupational medicine, the assessment of an employee’s working capacity, medical diagnosis and/or the provision of health care or treatment.
Section 11 of the Data Protection Act (UK) 2018 states that in the UK organisations can only rely on this condition if the information is being processed by a health professional or a social worker professional or another person who in the circumstances owes of a duty of confidentiality under an enactment or rule of law. Therefore, this condition only applies where an organisation has appointed medical or social advisors who are professionals.
So, an organisation can be justified in processing special category data relating to COVID-19 on the advice of its medical advisors but only when able to show that the processing of this specific data is necessary. It must be a reasonable and proportionate way of achieving one of these purposes, and the organisation must not collect more data than it needs.
Public interest in the area of public health: on the advice of public medical advisors it may be possible to process special category data. This condition is only applicable where the processing is by, or under the responsibility of, a health professional or by someone else who in the circumstances owes a legal duty of confidentiality. For example, an organisation is contacted by health professionals who are trying to collect special category data in relation to the COVID-19 crisis to enable statistical analysis of the disease. On the advice of such public medical advisors, an organisation may rely upon the public interest in the area of public health condition when processing special category data for this purpose.
Consent is another legal bases for processing personal data. When collecting data as an organisation about individuals it is better not to rely upon consent because there is a risk of it not being freely given. This is based upon the general view that an inherent imbalance of power exists between individuals and organisations, in favour of organisations. Consent can also be withdrawn at any time.
Proportionate Collection/Processing of Personal Data for Purpose
An important aspect of GDPR compliance is that organisations only collect as much personal data as is strictly necessary for the purposes being pursued.
Within the context of COVID-19 this includes not naming an individual who is a health risk to other individuals or any other sensitive information about that individual in an organisation when it is not strictly necessary. Another example may be when enquiring about those experiencing symptoms within an individual’s household. In this instance it is unlikely that any more information than a simple ‘yes’ or ‘no’ answer would be required.
In addition, organisations should ensure that the personal data that they collect is stored only for as long as necessary.
COVID-19 Data Protection Q&A
Can you tell staff that a colleague may have potentially contracted COVID-19?
Yes. You should keep staff informed about cases in your organisation. But don’t provide any more information than necessary. You have an obligation to ensure the health and safety of your employees, as well as a duty of care. Data protection rules do not prevent you doing this.
Can you collect health data in relation to COVID-19 about employees or from visitors to my organisation? What about health information ahead of a conference, or an event?
You have an obligation to protect your employees’ health and therefore it is reasonable to ask people, be that employees or visitors to your organisations, to tell you if they are experiencing COVID-19 symptoms and hence collect special category data about them. Don’t collect more than you need and ensure that any information collected is treated with the appropriate safeguards and discarded as soon as it becomes obsolete.
For example, the best thing to ask would be a simple yes or no question as to whether an employee or visitor is experiencing COVID-19 symptoms or if anybody in their household is. Gaining any medical information unrelated to COVID-19 or their ability to visit your organisation would be deemed unnecessary.
You could also ask visitors to consider government advice before they decide to come. And you could advise staff to call 111 if they are experiencing symptoms. This approach should help you to minimise the information you need to collect.
Data protection is not a barrier to increased and different types of homeworking. During the pandemic, staff may work from home more frequently than usual and they can use their own device or communications equipment. Data protection law doesn’t prevent that, but you’ll need to consider the same kinds of security measures for homeworking that you’d use in normal circumstances. This includes the potential need to specifically train homeworkers on their obligations and those of the employer in relation to data protection and confidentiality, concerning the procedures which they must follow, and what is, and is not, an authorised use of data.
Should Organisations Consider Undertaking a Data Protection Impact Assessment (DPIA)?
GDPR requires organisations to undertake a mandatory DPIA:
- if their processing is likely to result in high risk to the rights and freedoms of individuals – this should involve considerations of the likelihood and severity of potential harm. Article 35(3) of the GDPR provides the following examples of when a processing operation is “likely to result in high risks”:
- A systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person.
- Processing on a large scale of special category data, or of personal data relating to criminal convictions and offences.
- A systematic monitoring of a publicly accessible area on a large scale.
- (relevant data to COVID-19) when processing biometric data, genetic data and/or tracking data.
- The GDPR defines biometric data in Article 4(14) as “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 a person, such as facial images or dactyloscopic.” A fingerprint would be an example.
- The GDPR defines genetic data in Article 4(13) as “personal data relating to the inherited or acquired genetic characteristics of a natural person”. A genetic profile of an individual would be an example.
- Tracking data – an example would if an organisation uses device location data when accessing the geographical implications of COVID-19.
If an organisation has already started to undertake such processing activities or process this kind of data without undertaking a DPIA then they should perform one as soon as possible.
In the context of COVID-19 a DPIA will be necessary if an organisation has processed data in this way or of this nature in response to the pandemic. It is also helpful to know the context in which an organisation would be expected to perform a DPIA so that they can avoid it. Another example might be an organisation who becomes involved in the large scale processing of data in response to the crisis. Such an organisation should be prepared to undergo a DPIA if the nature of this new processing requires it.
Undertaking a DPIA, mandatorily or not, can still be useful for organisations in order to understand potential risks within their data controlling/processing activities.
If you need any help with COVID-19 data protection issues or on any other aspects of data protection law please get in touch with one of our data protection lawyers.