Processing of sensitive personal data

Despite GDPR^[1]Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) replaced the term “sensitive personal data” from the Polish Act on Personal Data Protection with “special categories of personal data”, the former term is still frequently used. Although the change in terminology suggests also a change in the rules of dealing with this type of personal data, the most important rule has remained the same: the processing of such data is possible, but only in strictly defined cases.

What is meant by special categories of personal data?

GDPR does not define special categories of personal data. However, this is not a problem, because the EU legislator has provided for something much better – a closed catalog. According to art. 9 sec. 1 of GDPR, the following data are covered by this term:

• data revealing racial or ethnic origin,
• data revealing political opinions, religious or philosophical beliefs,
• data revealing trade union membership,
• genetic and biometric data,
• data concerning health, sex life or sexual orientation.

The definitions of three of the above categories of data are part of the catalog of definitions in art. 4 of GDPR. According to them:

• “genetic data” means 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” means 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;

• “data concerning health” means 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.

What the other categories include, you have to guess. However, I think they are so precise that there should be no problem with it. The controller should be able to find out quite easily that he is not dealing with ordinary personal data.

Processing of sensitive data is prohibited…

The basic rule introduced by art. 9 sec. 1 of GDPR says that the processing of the data indicated above is prohibited. So if you are collecting sensitive personal information, stop doing it immediately. Unless there is one of the exceptions listed in art. 9 sec. 2  of GDPR.

…but possible in some cases

Art. 9 sec. 2 of GDPR provides for ten exceptions in which the controller may process sensitive personal data. However, if you are an ordinary entrepreneur, only the first two are relevant to you (the others should not apply):

1. the data subject has given explicit consent to the processing of those personal data for one or more specified purposes;
2. 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.

In the first case, the situation is clear. If you have the consent of the person to whom the sensitive data relates, you can process them. However, it is very important that the consent form is properly constructed. The content of the consent should indicate what specific data and for what specific purpose will be processed.

As for the second exception, if there is any processing of special categories of personal data by an administrator who is an entrepreneur, in the vast majority of cases it will be done on the basis of the provisions of labor law. As an example may be indicated  processing of data on the health of employees by the employer in connection with sick leave.

Information relating to criminal convictions and offences

Although data related to criminal convictions and offences are not explicitly classified as special personal data by GDPR, the rules in their case are even stricter. Art. 10 of GDPR allows the processing of such data only under the control of official authority or when the processing is authorized by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Therefore, the processing of these data should be avoided, even if the consent of the data subject has been obtained.

In general it is the best to avoid sensitive data

If, as a result of your company’s activities, you have contact with data included in the catalog of special categories of personal data specified in art. 9 sec. 1 of GDPR, you should first consider whether you need to process them at all. There are situations where sensitive data cannot be avoided – as in the above-mentioned example in the field of labor law. But if you do not employ any employees or run a medical activity, there is 99% chance that you do not need to collect and process this category of personal data.

However, if for some reason you avoid processing of special categories of personal data and you are not sure whether one of the exceptions indicated in art. 9 sec. 2 of GDPR occurs, when collecting data ask for consent to processing, indicating in the request that it concerns the processing of sensitive personal data (and specifying the purpose of processing). Only in this way will you be sure that you act in accordance with GDPR. General grounds for processing set out in art. 6 sec. 1 of GDPR are definitely not enough.