Article 9 GDPR
Legal Text
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
Commentary
Overview
Article 9 GDPR contains a prohibition for the processing of special categories of data; that is, data that the legislator has considered to be particularly sensitive for different reasons. This prohibition contains also different exceptions that allow the processing in situation in which such processing is necessary.
(1) Prohibition of the processing of special categories of personal data
The GDPR prohibits, in its Article 9(1), all processing of special categories of personal data unless it is based on one or more of the ten alternative legal bases under Article 9(2). This approach means that by default processing of other persons' special categories of data is prohibited – unless one of the exceptions in Article 9(2) are met.
The list is exhaustive, so no other exceptions can be used.[1]
Special categories of data
The list of special categories of data includes: 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.
It is to be noted that the A29WP has determined that the term “data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, and trade-union membership” is to be understood that not only data which by its nature contains sensitive information is covered by this provision, but also data from which sensitive information with regard to an individual can be concluded.[2] The A29WP has also remarked that biological race does not exist, so this category is only meant for the protection of certain data due to their reference to a particular ethnic group.[3]
These categories are therefore meant to be interpreted broadly. This was already stated by the CJEU regarding health data under the Data Protection Directive, saying that “in the light of the purpose of the directive, the expression “data concerning health” used in Article 8(1) thereof must be given a wide interpretation so as to include information concerning all aspects, both physical and mental, of the health of an individual”.[4] In this way, for example, the Austrian DPA has held that negative PCR (SARS_CoV-2) test are to be qualified as a health data.[5] This category also may include data on special needs of students, since it qualifies as health data.[6]
In the same sense, for example, data revealing racial data may include the shape of the face or eyes, and data revealing political opinions may include value judgments, statements, views and convictions.[7] The Austrian Federal Administrative Court also has held, for example, that data on the "affinity for a political party" also qualifies as special categories of personal data, namely as data on political opinions.[8]
The definitions for biometric and genetic data and data concerning health are provided by Article 4. Additionally, and in the same sense as before, these terms shall be interpreted broadly, so when genetic, biometric or health data can be inferred from other kind of data, it will be included in the protected special categories. For example, photographs can be considered biometric data when processed through a specific technical means allowing the unique identification or authentication of a natural person, as stated by recital 51.
Legal Basis – Relation to Article 6
In accordance to recital 51, when processing data from Article 9 GDPR, not only conditions from such Article apply but the general principles and other rules of the GDPR shall be applied too. In particular, the conditions for lawful processing apply. Therefore, the processing of special categories of personal data cannot only be based on one of the exceptions and requirements from Article 9(2) and (3), but also has to be based on a legal basis from Article 6(1).[9] This also means that principles from Article 5 shall be applied when processing special categories of data.
(2) Exceptions
In accordance with Article 9(2), special categories of data can only be processed when meeting one of the exceptions listed.
a) Explicit consent
The first exception, under letter a), is the obtention of the explicit consent of the data subject. As opposed to consent used as a legal basis from Article 6(1), consent from Article 9 is a qualified type of consent that requires a higher level of precision and will from the data subject. Consent will need a clearly affirmative action separate from other transactions.[10] Additionally, the data subject must give an express statement of consent.[11] Also, consent will need to meet all the other requirements from Article 7.
For example, 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).[12]
b) Necessary for the purposes of carrying out obligations and exercising specific rights in the field of employment and social security law
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. Such obligations and exercise of rights must be provided by law or by a collective agreement, and must provide for appropriate safeguards. Biometric and health data play an important role in this exception, and the necessity principle is key to avoid overuse.[13]
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.[14]
c) Vital for the protection of the vital interests of the data subject or of another natural person where the data subject is incapable of giving consent
Thirdly, and similarly to one of the legal basis from Article 6, Article 9(2) provides under letter c) an exception to the processing of special categories of data when the processing is vital for the protection of the vital interests of the data subject or of another natural person where the data subject is incapable of giving consent. As specified by recital 46, the processing shall take place only where the processing cannot be manifestly based on another legal basis; therefore, in order to use this exception, the data subject must be in a situation in which they are physically or legally unable to consent.
d) In the course of 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
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.
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 public the data and be aware of the result of such publicity. The mere existence in public space does not fall under the term of publication in this sense.[15]
The Norwegian DPA has considered, for example, that making use of a gay 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, an anonymous profile can be used and there is not a clear warning of the public nature of the information.[16]
f) Necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity
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 should be interpreted restrictively, meaning that it will only be applicable to legal claims or activities and to immediate preparatory acts.[17]
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 law must satisfy the principle of certainty and define the necessary safeguards, and therefore the right must be itself enshrined in the law.[18] Recital 46 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 includes the provision of health or social care or treatment and the management of health or social care systems and services.
The processing must be carried out on the basis of Union or Member State law or pursuant to contract with a health professional. Additionally, Article 9(3) 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.[19]
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, the resistance to the latter movements and on political manifestations of right-wing extremism, including 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.[20]
(3) Professional secrecy
Data processed for necessary for medicinal purposes or for the management of health systems and services, under the exception from Article 9(2)(h), 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, since confidentially obligations are not strong enough.[21]
(4) Opening Clause
According to Article 9(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. Member States are not allowed to introduce additional legal bases and 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;[22] protection for biometric data in passports and identity cards, that must be secured against unauthorized modification, deletion and readout;[23] the processing of personal data of organ donors;[24] or data protection in the public health insurance and related associations.[25]
Decisions
→ You can find all related decisions in Category:Article 9 GDPR
References
- ↑ Georgieval/Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 9 GDPR, p. 375 (Oxford University Press, Oxford, 2020)
- ↑ Article 29 Working Party, Advice Paper on Special Categories of Data (4 April 2011), p. 6. Available at: https://ec.europa.eu/justice/article-29/documentation/other-document/files/2011/2011_04_20_letter_artwp_mme_le_bail_directive_9546ec_annex1_en.pdf (accessed 19.07.2021)
- ↑ Article 29 Working Party, Advice Paper on Special Categories of Data (4 April 2011), p. 10. Available at: https://ec.europa.eu/justice/article-29/documentation/other-document/files/2011/2011_04_20_letter_artwp_mme_le_bail_directive_9546ec_annex1_en.pdf (accessed 19.07.2021)
- ↑ CJEU, 6.11.2003, Bodil Lindqvist, C-101/01, § 50 (available at: https://curia.europa.eu/juris/document/document.jsf?text=&docid=48382&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2289382 (accessed 28/07/2021))
- ↑ [Datenschutzbehörde, DSB-2021-0.101.211, February 15, 2021. Available at: https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=096d50fd-d36d-4a43-bb00-5ff38c3b6f4d&Position=1&Abfrage=Dsk&Entscheidungsart=Undefined&Organ=Undefined&SucheNachRechtssatz=True&SucheNachText=True&GZ=&VonDatum=01.01.1990&BisDatum=&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Dokumentnummer=DSBT_20210215_2021_0_101_211_00 (accessed 28/07/2021)
- ↑ Datatilsynet, 20 / 02191-1 KBK, July 7, 2020. Available at: https://www.datatilsynet.no/contentassets/9d5792264c884f3a903d3981c38812ac/~-20_02191-1-vedtak-om-overtredelsesgebyr---ralingen-kommune-202444_10_1.pdf (accessed 28/07/2021)
- ↑ Schiff, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 9 GDPR, margin numbers 15-22 (Beck 2018, 2nd ed.) (accessed 10/07/2021)
- ↑ Bundesverwaltungsgericht, W258 2217446-1, November 26, 2020. Available at: https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=e9b780cb-e5e0-4be8-81e7-7a49b08cc25b&Position=1&SkipToDocumentPage=True&Abfrage=Bvwg&Entscheidungsart=Undefined&SucheNachRechtssatz=True&SucheNachText=True&GZ=&VonDatum=&BisDatum=&Norm=DSGVO&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Dokumentnummer=BVWGT_20201126_W258_2217446_1_00 (accessed 28/07/2021)
- ↑ Expert Group Minutes 2016: Commission expert group on the Regulation (EU) 2016/679 and Directive (EU) 2016/680, 'Minutes of the Second Meeting' (10 October 2016). Available at: https://ec.europa.eu/transparency/expert-groups-register/core/api/front/expertGroupAddtitionalInfo/27803/download and https://ec.europa.eu/transparency/expert-groups-register/screen/expert-groups/consult?do=groupDetail.groupDetail&groupID=3461
- ↑ Bygravel/Tosoni, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 4 GDPR, p. 185 (Oxford University Press, Oxford, 2020)
- ↑ EDPB, Guidelines 05/2020 on consent under Regulation 2016/679, 4 May 2020, p. 20
- ↑ Datatilsynet, DT-20/02136, January 26, 2021. Available at: https://www.datatilsynet.no/contentassets/da7652d0c072493c84a4c7af506cf293/advance-notification-of-an-administrative-fine.pdf (accessed 28/07/2021)
- ↑ Schiff, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 9 GDPR, margin numbers 38-40 (Beck 2018, 2nd ed.) (accessed 10/07/2021)
- ↑ Autoriteit Persoonsgegevens, Decision from March 24, 2020 regarding CP&A B.V. Available at: https://autoriteitpersoonsgegevens.nl/sites/default/files/atoms/files/boete_cpa_verzuimregistratie.pdf (accessed 27/07/2021)
- ↑ Schiff, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 9 GDPR, margin numbers 45-46 (Beck 2018, 2nd ed.) (accessed 10/07/2021)
- ↑ Datatilsynet, DT-20/02136, January 26, 2021. Available at: https://www.datatilsynet.no/contentassets/da7652d0c072493c84a4c7af506cf293/advance-notification-of-an-administrative-fine.pdf (accessed 28/07/2021), with references to EDPB, Guidelines 8/2020 on the targeting of social media users, 2 September 2020, Section 8.2
- ↑ Georgieval/Kuner, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 9 GDPR, p. 379 (Oxford University Press, Oxford, 2020)
- ↑ CJEU, Case C‑291/12, 17 October 2013, paragraph 55; related to Case of S. and Marper v. The United Kingdom, Applications nos. 30562/04 and 30566/04, 4 December 2008
- ↑ Conseil d’Etat, N° 428451, November 25, 2020. Available at: https://www.legifrance.gouv.fr/ceta/id/CETATEXT000042570046?tab_selection=cetat&searchField=ALL&query=428451&searchType=ALL&juridiction=TRIBUNAL_CONFLIT&juridiction=CONSEIL_ETAT&juridiction=COURS_APPEL&juridiction=TRIBUNAL_ADMINISTATIF&sortValue=DATE_DESC&pageSize=10&page=1&tab_selection=cetat#cetat (accessed 28/07/2020)
- ↑ Datenschutzbehörde, DSB-D124.1177/0006-DSB/2019, January 22, 2021. Available at: https://www.ris.bka.gv.at/Dokument.wxe?ResultFunctionToken=ade5bfc2-3a92-44cc-90b6-36c9132c2332&Position=1&Abfrage=Dsk&Entscheidungsart=Undefined&Organ=Undefined&SucheNachRechtssatz=True&SucheNachText=True&GZ=&VonDatum=01.01.1990&BisDatum=&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Dokumentnummer=DSBT_20210122_DSB_D124_1177_0006_DSB_2019_00 (accessed 29/07/2021)
- ↑ Integritetsskyddsmyndigheten, DI-2019-3375, June 7, 2021. Available at: https://www.imy.se/globalassets/dokument/beslut/2021/2021-06-07-beslut-medhelp.pdf (accessed 29/07/2021)
- ↑ § 8(1) GenDG (German Genetic Diagnostics Act)
- ↑ § 5(6) and (9) PAuswG (German Passport and Identity Card Act)
- ↑ § 7 and § 14 TPG (German Organ Transplant Law)
- ↑ § 284 and § 285 SGB V (German Social Insurance Code V)
