Article 9 GDPR

← Article 9: Processing of special categories →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 9: Processing of special categories of personal data

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.

Relevant Recitals

Recital 10: Equivalent Level of Protection and Homogeneous Application

In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. Regarding the processing of personal data for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Member States should be allowed to maintain or introduce national provisions to further specify the application of the rules of this Regulation. In conjunction with the general and horizontal law on data protection implementing Directive 95/46/EC, Member States have several sector-specific laws in areas that need more specific provisions. This Regulation also provides a margin of manoeuvre for Member States to specify its rules, including for the processing of special categories of personal data (‘sensitive data’). To that extent, this Regulation does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful.

Recital 46: Vital Interest of a Natural Person

The processing of personal data should also be regarded to be lawful where it is necessary to protect an interest which is essential for the life of the data subject or that of another natural person. Processing of personal data based on the vital interest of another natural person should in principle take place only where the processing cannot be manifestly based on another legal basis. Some types of processing may serve both important grounds of public interest and the vital interests of the data subject as for instance when processing is necessary for humanitarian purposes, including for monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters.

Recital 51: Protection of Sensitive Personal Data

Personal data which are, by their nature, particularly sensitive in relation to fundamental rights and freedoms merit specific protection as the context of their processing could create significant risks to the fundamental rights and freedoms. Those personal data should include personal data revealing racial or ethnic origin, whereby the use of the term ‘racial origin’ in this Regulation does not imply an acceptance by the Union of theories which attempt to determine the existence of separate human races. The processing of photographs should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person. Such personal data should not be processed, unless processing is allowed in specific cases set out in this Regulation, taking into account that Member States law may lay down specific provisions on data protection in order to adapt the application of the rules of this Regulation for compliance with a legal obligation or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. In addition to the specific requirements for such processing, the general principles and other rules of this Regulation should apply, in particular as regards the conditions for lawful processing. Derogations from the general prohibition for processing such special categories of personal data should be explicitly provided, inter alia, where the data subject gives his or her explicit consent or in respect of specific needs in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms.

Recital 52: Derogating from the Prohibition on Special Category Data Processing

Derogating from the prohibition on processing special categories of personal data should also be allowed when provided for in Union or Member State law and subject to suitable safeguards, so as to protect personal data and other fundamental rights, where it is in the public interest to do so, in particular processing personal data in the field of employment law, social protection law including pensions and for health security, monitoring and alert purposes, the prevention or control of communicable diseases and other serious threats to health. Such a derogation may be made for health purposes, including public health and the management of health-care services, especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system, or for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. A derogation should also allow the processing of such personal data where necessary for the establishment, exercise or defence of legal claims, whether in court proceedings or in an administrative or out-of-court procedure.

Recital 53: Processing Special Category Data for Health-related Purposes

Special categories of personal data which merit higher protection should be processed for health-related purposes only where necessary to achieve those purposes for the benefit of natural persons and society as a whole, in particular in the context of the management of health or social care services and systems, including processing by the management and central national health authorities of such data for the purpose of quality control, management information and the general national and local supervision of the health or social care system, and ensuring continuity of health or social care and cross-border healthcare or health security, monitoring and alert purposes, or for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, based on Union or Member State law which has to meet an objective of public interest, as well as for studies conducted in the public interest in the area of public health. Therefore, this Regulation should provide for harmonised conditions for the processing of special categories of personal data concerning health, in respect of specific needs, in particular where the processing of such data is carried out for certain health-related purposes by persons subject to a legal obligation of professional secrecy. Union or Member State law should provide for specific and suitable measures so as to protect the fundamental rights and the personal data of natural persons. Member States should be allowed to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. However, this should not hamper the free flow of personal data within the Union when those conditions apply to cross-border processing of such data.

Recital 54: Processing of Health Data for Reasons of Public Interest

The processing of special categories of personal data may be necessary for reasons of public interest in the areas of public health without consent of the data subject. Such processing should be subject to suitable and specific measures so as to protect the rights and freedoms of natural persons. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council, namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality. Such processing of data concerning health for reasons of public interest should not result in personal data being processed for other purposes by third parties such as employers or insurance and banking companies.

Recital 55: Processing by Authorities to Achieve Aims of Religious Associations

Moreover, the processing of personal data by official authorities for the purpose of achieving the aims, laid down by constitutional law or by international public law, of officially recognised religious associations, is carried out on grounds of public interest.

Recital 56: Processing in the Course of Electoral Activities

Where in the course of electoral activities, the operation of the democratic system in a Member State requires that political parties compile personal data on people's political opinions, the processing of such data may be permitted for reasons of public interest, provided that appropriate safeguards are established.

Commentary

Article 9(1) GDPR contains a general prohibition for the processing of special categories of data; that is, data that the legislator has considered to be particularly sensitive for different reasons. Under Article 9(2) GDPR such general prohibition is excluded when certain requirements are met. Article 9(3) GDPR lays down specific indications for processing carried out in the context of professional or institutional activities. Finally, Article 9(4) GDPR allows Member States to maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.

(1) General prohibition of processing of special categories of personal data

Article 9(1) GDPR provides a list of special categories of personal data whose processing is generally prohibited unless any of the exceptions under Article 9(2) GDPR applies. The list is exhaustive and includes data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or a natural person's sex life or sexual orientation.

In general terms, the prohibition of processing shall apply to all data revealing sensitive aspects. These categories are meant to be interpreted broadly and, according to some authors, not only cover data directly containing sensitive information (i.e. a trade union's badge, or a clinical record) but also data from which sensitive information can be inferred. Take, for instance, the online support given to a political demonstration, or a video footage showing the person accessing a certain hospital department. In both cases, it is argued, the information reveals something sensitive about the individual (either their political views, or a health condition) and should be treated accordingly.

Racial or ethnic origin

This category recognises and expresses the intention to protect the principle of non-discrimination and cultural diversity typical of any modern society. While the characteristic of "racial origin" is based on biological ancestry and hereditary characteristics, "ethnic origin" focuses more on the cultural aspects that characterise a group of people. These include language, history, tradition, shared values and a sense of togetherness. However, the use of the term “racial” in no way means that the GDPR or the European Union accepts a definition, or even worse the existence of, any “race”. This assumption has already been made clear by the WP29, and subsequently confirmed by Recital 51 GDPR: “the use of the term ‘racial origin’ in this Regulation does not imply an acceptance by the Union of theories which attempt to determine the existence of separate human races”. Rather, the special protection is intended to counteract such theories.

Political opinions

The GDPR does not provide a definition of the expression "political opinion". It seems clear, however, that any type of clear, unambiguous statement, support or, as the case may be, rejection of a political party or of an ideological organization, any subscription to a politically oriented magazine, or participation in offline and online petitions, meetings or demonstrations, most likely amount to "political opinion". Conversely, opinions that focus on purely commercial facts or exclusively express a private interest, without reference to a public debate or the functioning of a democratic and pluralistic society, are excluded from the definition.

In cases of doubt, a broad understanding of the term "political opinion" is appropriate in order not to jeopardize the foundations of political opinion-forming. For these reasons, a fairly large number of activities are covered by the processing ban with regard to political opinions. They range, for example, from subscriber lists of political party magazines and lists of participants at political events or demonstrations, to expressions of interest or approval for political groups in social networks (such as the "Like" on Facebook) as long as they reflect a reliable conclusion on a political opinion.

Religious and philosophical beliefs

The protection of religious beliefs aims to protect not only "traditional" religious affiliations but also other secular views (e.g. pacifism, socialism). Followers of natural religions or sects, atheists, anthroposophists, or members of ideological organizations, as well as Christians, Muslims and Buddhists all have a right to legal protection which guarantees that information about their convictions may only be processed under special conditions.

Trade union membership

Expression of Article 28 of the EU Charter of Fundamental Rights, this category reflects the importance of trade unions' role in protecting workers' dignity and labour conditions. By restricting the processing of this type of data, this provision reduces the risk of employer retaliations based on trade union membership. This category refers to membership as well as activities activities that reveal a close connection to a trade union. These include, among others, status as a union representative, documents showing a certain union membership, participation in the foundation of a union, as well as daily handling of union affairs. Depending on the individual case’s circumstances, the subscription to a trade union publication, the distribution of trade union documents (publications, advertising material) or even the expression of interest in the activities of a trade union (e.g. reading the notices, talking to a union member at the trade union stand), may also benefit from this special protection under Article 9(1) GDPR.

Genetic data

A definition of genetic data can be found in Article 4(13) GDPR. It includes any 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

A definition of biometric data can be found in Article 4(14)GDPR. It refers to 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. With regard to biometric data, it should be noted that Article 9(1) only prohibits their processing "for the purpose of uniquely identifying a natural person". Therefore, the processing of biometric data for other purposes does not fall under the general prohibition of processing. According to Petri, the exact meaning of "uniquely identifying" is to be based on the processing method and the respective state of the art, but above all on the individual case’s circumstances , and in particular, the nature of the data processed.

Health data

Article 4(15) GDPR defines health data as any 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. In this way, for example, the Austrian DPA has held that negative PCR (SARS_CoV-2) tests should be classified as health data. This category may also include data on special needs of students which qualify as health data too.

EDPB Guidelines: on this provision there are EDPB Guidelines 03/2020 on the processing of data concerning health for the purpose of scientific research in the context of the COVID-19 outbreak

"[S]pecial categories of personal data, listed in [...] Article 9(1) of the GDPR, include data concerning health. Those data cover, in accordance with Article 4(15) of that regulation, read in conjunction with recital 35 of that regulation, all personal data which reveal information relating to the past, present or future health status of a natural person, including data relating to the provision of healthcare services to that person.

[...]

Consequently, the information which customers of an operator of a pharmacy enter when ordering online pharmacy-only medicinal products the sale of which does not require a prescription constitutes data concerning health, within the meaning of [...] Article 9(1) of the GDPR, even where it is only with a certain degree of probability, and not with absolute certainty, that those medicinal products are intended for those customers."

CJEU - C‑21/23 - Lindenapotheke, margin number 76 and 90..

Sex life and sexual orientation

The special protection afforded to personal data concerning sex life and sexual orientation essentially reflects the EU’s interest in fighting any sort of discrimination based on these factors as established in Article 21 of the EU Charter of Fundamental Rights. This includes information relating to heterosexuality, bisexuality, homosexuality and transsexuality, such as information about an intended gender change, one that has already taken place, living in a registered civil partnership or in a same-sex marriage. It also protects information related to sexual practices, as well as other acts that may reveal sexual orientation. Even the abstention from sexual practices may be considered sensitive data.

Legal basis – relation to Article 6 GDPR

In accordance to Recital 51 GDPR, when processing data pursuant to Article 9 GDPR, not only do the conditions within this article apply, but so do the general principles and other rules of the GDPR as well. This means that not only do the principles in Article 5 GDPR apply, but that the conditions for lawful processing also apply. Therefore, the processing of special categories of personal data must not only be based on one of the exceptions and requirements from Article 9(2) and Article 9 (3) GDPR, but will also require an additional concomitant legal basis contained in Article 6(1) GDPR.

However, four exceptions for processing special categories of data established in Article 9(2)(a) GDPR, Article 9(2)(c) GDPR, Article 9(2)(g) GDPR and Article 9(2)(i) GDPR directly correlate with a specific legal basis laid out in Article 6(1) GDPR, while offering an even stricter and better protection. Therefore, it can be interpreted that these exceptions in Article 9(2) GDPR related to explicit consent, vital interests of a person physically or legally unable to give consent, and public interest, subsume the corresponding legal basis contained in Article 6(1)(a) GDPR, 6(1)(d) GDPR and 6(1)(e) GDPR respectively, and would require no additional correlation. The other six exceptions listed in Article 9(2) GDPR would require an additional legal basis pursuant to Article 6(1) GDPR.

(2) Exceptions

In accordance with Article 9(2) GDPR, special categories of data can only be processed when meeting one of the exceptions listed. These exceptions are independent of each other and must therefore be assessed independently. If the conditions for one of the exceptions are not met, a controller can therefore rely on another exception listed in Article 9(2). The CJEU has emphasized the application of the doctrine singularia non sunt extendenda to these exceptions, urging a strict interpretation.

(a) Explicit consent

The first exception, under letter (a), is obtaining the explicit consent of the data subject. As opposed to the simple consent established as a legal basis in Article 6(1)(a) GDPR, the explicit consent in Article 9(2)(a) GDPR is a qualified type that requires a higher level of precision and will from the data subject. Explicit consent will need a clearly affirmative action separate from other transactions. Additionally, the data subject must give an express statement of consent. Consent will also need to meet all the other requirements in Article 7 GDPR. Although they are not equivalent, as we have mentioned before, there is a definite correlation between the consent established in Article 6(1)(a) GDPR and the explicit consent in Article 9(2)(a). For example, in a recent decision, the Norwegian DPA has held that it is not possible to rely on this exception when consent is not valid under Article 6(1)(a) GDPR.

(b) Necessary for employment and social security purposes

The second exception, under letter (b), is related to processing by employers that is necessary for the purposes of carrying out 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. These obligations and rights must be provided by law or by a collective agreement, and include appropriate safeguards. Biometric and health data play an important role in this exception, and the necessity principle is key to avoid overuse. For example, the Dutch DPA has held that the processing of special categories of data – health data in this particular case – must be strictly necessary to achieve what is stated in the law; when the processing of certain categories of health data is not really necessary to comply with the legal obligation, the controller cannot rely on this exception for those categories.

(c) Protection of the vital interests of the data subject or of another natural person

Thirdly, and similarly to the legal basis from Article 6(d) GDPR, Article 9(2) GDPR provides, under letter (c), an exception to the processing of special categories of data when the processing is necessary for the protection of the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent. As specified by Recital 46 GDPR, the processing of personal data based on the vital interest of another natural person shall take place only where the processing cannot be manifestly based on another legal basis.

(d) In the course of legitimate activities by a foundation and similar bodies

The fourth exception, under letter (d), is for the processing 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. Such bodies shall only carry out the processing internally, and the processing shall relate to members or former members. The rationale behind this exception is that often such bodies are intrinsically related with personal data that fall under the categories of Article 9 GDPR.

(e) Related to personal data which are manifestly made public by the data subject

The fifth exception, under letter (e), makes reference to data that is manifestly made public. The word “manifestly” implies that the data subject must affirmatively make the data public, and must be aware of the result of such publicity. The mere presence of the data in a public space does not necessarily imply that it has been manifestly made public in this sense.

"It follows that, for the purposes of the application of the exception laid down in Article 9(2)(e) of the GDPR, it is important to ascertain whether the data subject had intended, explicitly and by a clear affirmative action, to make the personal data in question accessible to the general public [...]"

CJEU - C-446/21 - Schrems v Facebook Ireland (2021), margin number 77..

The Norwegian DPA has considered, for example, that making use of a LGTBQ dating app does not amount to manifestly making public data about sexual orientation, since the data is mainly only visible to other members of the LGTBQ community, as it is necessary to have an account too in order to access that data. Additionally, the app gives you the option of using an anonymous profile, and the app does not provide a clear warning stating the public nature of any information on the data subject’s profile.

Contrary, the CJEU couldn't rule out that a data subject's statement about their sexual orientation during a panel discussion which was subsequently published on YouTube could constitute an act by which the data subject manifestly made his sexual orientation public.

The exception for information manifestly made public has another important limitation. The fact that a data subject manifestly makes public specific information in accordance with Article 9(2) GDPR does not mean that other personal data relating to the special category of data also lose the special protection stipulated in Article 9(1) GDPR. This would be contrary to the restrictive interpretation of the exceptions listed in Article 9(2) GDPR. Neither can the fact that a data subject published personal data covered by Article 9(1) GDPR be interpreted as a consent within the meaning of Article 9(2)(a) GDPR for the processing of other data relating to special categories of data.

(f) Necessary for the establishment, exercise or defence of legal claims

The sixth exception, under letter (f), relates to legal claims and judicial activities, that in many cases require the processing of certainly sensitive data. While the concept of legal claims and judicial activities is to be interpreted broadly in order to include every type of legal claim, since the term is not further specified. The exception itself, however, should be interpreted restrictively, meaning that it will only be applicable to legal claims or activities, as well as to immediate preparatory acts.

(g) Necessary for reasons of substantial public interest, on the basis of union or Member State law

The seventh exception, under letter (g), allows for the processing of special categories of data when there is a substantial public interest involved. The processing shall be carried out on the basis of Union or Member State law, and 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. The right must be itself enshrined in the law, which satisfy the principle of certainty, and define the necessary safeguards. Recital 46 GDPR provides, as an example, "processing that is necessary for humanitarian purposes, including for monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters."

(h) Necessary for medicinal purposes or for the management of health systems and services

The eighth exception, under letter (h), includes the processing of data that is necessary for medicinal purposes and for the provision of health services. Medicinal purposes entail preventive or occupational medicine, the assessment of the working capacity of the employee, or medical diagnosis. The management of health systems and services includes the provision of health or social care or treatment. The processing must be carried out on the basis of Union or Member State law or pursuant to a contract with a health professional. Additionally, Article 9(3) GDPR establishes a supplementary condition: the data shall be processed by or under the responsibility of a professional subject to the obligation of professional secrecy.

(i) Necessary for reasons of public interest in the area of public health

The ninth exception, under letter (i), includes data processed for the public interest in the area of the public health. An example of such public interest can be processing of personal data with the aim of 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. This must be done 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.

These measures must be effective and must be provided by law. For example, the French Highest Administrative Court declared that a decree was unlawful due to the absence of sufficient guarantees to ensure that access to the processed health data did not exceed that which is strictly necessary for the exercise of the mission recognised by law.

(j) Necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes

The last exception, under letter (j), includes processing that is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. This shall be based on Union or Member State law and 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. For example, the Austrian DPA has held that labelling a person as "extreme right-wing" in a blog for the purpose of scientific research on the history of fascism and National Socialism, political manifestations of right-wing extremism and the resistance to the latter movements, including also the purpose of documentation and archiving (especially when such person has taken a basic political stance and repeatedly expressed this publicly), falls under this exception.

(3) Professional secrecy

Data processed necessarily for medicinal purposes or for the management of health systems and services under the exception from Article 9(2)(h) GDPR, shall be processed by or under the responsibility of a professional subject to the obligation of professional secrecy. The obligation of professional secrecy must be provided by national law and must be statutory. For example, the Swedish DPA has established that a confidentially contract cannot replace statutory professional secrecy on the grounds that confidentially obligations are not strict enough.

(4) Opening clause

According to Article 9(4) GDPR Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. Member States are not allowed to introduce additional legal bases or lower the level of protection for special categories of personal data. For example, Germany has introduced rules regarding consent in a genetic examination or analysis, protection for biometric data in passports and identity cards, that must be secured against unauthorized modification, deletion and readout, the processing of personal data of organ donors, and on data protection in the public health insurance and related associations.

Decisions

→ You can find all related decisions in Category:Article 9 GDPR