Category: COVID-19-Virus

Series on Data Protection and Corona – Part 6: Data Sharing Practices to Fight the Corona Pandemic

26. March 2020

The newest developments of public lockdowns in many countries and states show that the Coronavirus is an unprecedented challenge to governments, administrations and law enforcement across the whole world. In an attempt to contain the spread of the pandemic, governments are seeking out all the possible options that are available to them. One promising option may be to make use of existing data by sharing, comparing and evaluating them to gain insights into how to best address the current challenges. It becomes apparent that countries take different approaches to allowing and using data sharing as a means to fight the pandemic.

Today’s blogpost will take a look at how data sharing is practiced around the world and what this might mean for the privacy of individuals.

Data Sharing by Public Authorities to Public Authorities

The Executive Committee of the Global Privacy Assembly (GPA) published a statement on 17 March 2020, calling for the sharing of personal data as necessary by organisations and governments, even across borders.

The GPA is a data protection entity comprising more than 130 international data protection authorities (DPAs) on the national and state level. Among many others, the accredited members include the DPA of Japan, USA, Canada, Mexico, Australia, Israel, Hong Kong, Argentina and all EU countries.

In its statement, the GPA makes clear that the data protection rules will not be a hinderance to effectively tackling the Corona pandemic. In fact, across all member jurisdictions, the data protection laws allow the processing of personal data in the public interest (e.g. Art. 6 para. 1 s. 1 lit. e  and Art. 9 para. 2 lit. i GDPR). In the current crisis, the DPAs all over the world will help facilitate swift and safe data sharing to fight Corona, whilst still maintaining the privacy rights of individuals proportionately.

Data Sharing by Private Entities to Public Authorities

In the meantime, private entities all over the world have started to share personal data with public bodies in an effort to fight the pandemic. The extent of these data sharing practices largely depend on the national data protection laws that the respective countries have in place. Since the level of data protection still varies greatly in different jurisdictions, the data sharing practices vary greatly also.

In several EU countries like Germany and Austria, telecommunications companies have started sharing anonymised mobile location data of customers with governmental agencies in order to trace the movement patterns of mobile phone users. The German governmental health agency Robert-Koch-Institue (RKI) for example, received more than 5 Gigabyte of anonymised data from Deutsche Telekom. The RKI will use the data to model the flows of movement which shall provide the researchers new insights into the spread of the virus.

The European Data Protection Board (EDPB) affirms in its statement from 19 March 2020 that within the jurisdiction of the GDPR, personal data protection rules do not apply to data which has been appropriately anonymised. Even the processing of non-anonymised location data by public authorities is possible if a EU Member State introduces national legislation to safeguard public security pursuant to Art. 15 para. 1 ePrivacy Directive (2002/58/EC). However in this case, a Member State must also put in place adequate safeguards to individual rights such as the right to a judicial remedy, as well as abide by the proportionality principle.

In other countries like Taiwan, South Korea and Israel, telecommunications companies and credit card companies are already sharing non-anonymised mobile location data and payment data with their governments, in order to track cases, cut transmission chains and enforce quarantines.

The authorities in Taiwan, for instance, make use of the mobile location data far more rigorously than the authorities in Western countries, as they have established the so-called “electronic fence” which is fed with data from telecommunications providers. This system monitors the mobile location data constantly and informs police and local officials if people in mandated home quarantine move away from their addresses or turn off their mobile phones. In the event of such an alert, the authorities will contact or visit these people within 15 minutes. Quaratine violators in Taiwan will face a fine of up to 1 Mio Taiwanese Dollars (31.000 Euros).

Israel is mainly using mobile location data to trace people who came in close contact with known Coronavirus carriers, and send them text messages ordering them to self-isolate immediately. However, the authorities shall also track whether a virus carrier is adhering to quarantine rules. Last week, the Israeli government approved of emergency regulations that allow the domestic security agency Shin Bet the processing of non-anonymised location data for a limited period of 30 days, with the permission of the attorney general.

As governments are taking measures against the spread of Corona, some more and some less intrusive to the privacy rights of individuals, time will tell whether the measures have worked effectively in containing the pandemic.

The series on Data Protection and Corona will be continued tomorrow with a blogpost on “Data Protection and Online learning tools”.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

Series on Data Protection and Corona – Part 5: Data Protection compliant remote work

25. March 2020

The corona virus (SARS-CoV-2) is currently omnipresent. In order to slow down the spread of the virus, many companies, offices and employers are switching to having their staff work remote. But even in times of pandemic crisis and in the home office, the conditions for compliance with existing data protection laws must be in place and need to be considered. The responsibility of the company or employer (as a controller) and thus, if applicable, the personal liability of the management still remains.

For the period working at home, the employer should establish strict and transparent rules to clarify his rights and obligations as well as for his employees, regardless where and on which end device the employees work. Therefore, each employer should take appropriate and proportionate measures in order to make sure, that he and his employees will act in compliance with the requirements of the GDPR during the whole period of state emergency within the EU.

Due to the fact, that data processing at home carries a higher risk of data loss and data breach. It is recommended to consider the following measures below and further, to agree in such measures in writing, especially in order to avoid unnecessray misunderstandings and liability issues:

  • to provide employees with business terminal (mobile) devices for work in the home office, in order to be able to update the devices on regular terms or for setting up firewalls and anti-virus protection and unauthorized access,
  • to prohibit the use of private devices and, as far as possible, to technically prevent this.

The measures above can be implemented in the company or office, further precautions and instructions are required in the employee’s home workplace, such as:

  • the employer should set up a guidline on the handling of documents and how they are to be deconstructed (e.g. shredding and not misued as scap paper),
  • employees should be aware of measures to protect confidential data and information. Third party access, such as privacy filter or a password-protected screen saver in order to avoid “shoulder surfing” etc.,
  • the employee should prevent the viewing and access by third parties, such as aligning the monitor, using a privacy filter or setting up an automatic, password-protected screen saver,
  • the workplace should be in a separate room,
  • employees who do not live alone should always lock their mobile devices or laptops when leaving,
  • business related documents or mails should not be forwarded to private mail accounts or mailboxes,
  • employees should set up secure passwords (the password should contain at least 8 characters, consisting of a combination of letter, numbers and special characters).

The series on data protection and corona will be continued tomorrow with a blogpost regarding the statement of the Global Privacy Assembly on “Data Sharing Practices to Fight the Corona Pandemic”.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

Series on Data Protection and Corona – Part 4: Processing of health data in context of preventive measures against corona infections

24. March 2020

Stopping the spread of the corona virus as far as possible, or at least slowing it down, is the top priority these days. For this reason, as far as possible many employers instruct their employees to work remote from home in order to reduce the risk of infection. However, this approach does not work for all businesses, such as the pharma industries, utilities (e.g. power plants) or grocery stores, food retailer and supplier. Therefore, there is a strong interest of such businesses that neither the present employees nor visitors (or customer) are infected with the virus.

In terms of infection prevention purposes, information on the state of health of individuals are an important means to help preventing people from getting infected with the virus and thus “flatten the curve”. Such health information fall under the so-called special categories of personal data according to Art. 9 of the EU General Data Protection Regulation (GDPR) and hence are subject to a particularly high level of protection. Therefore, when requesting information about an employee’s or visitor’s health, there are a number of things to be considered.

What are health data?

First, it needs some more clarification on the term ‘health data’: According to Art. 4 No. 15 GDPR, health data are 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.

The term health data thus not only covers disease-specific information about the data subject, such as a viral infection or drug consumption, but already the general statement as to whether someone is healthy or not. Information that may not directly indicate an individual’s state of health in the first place is also to be considered health data if, in fact, the context in which the information is to be used leads to a conclusion about an individual’s health condition.

When can health data be processed?

It remains to be clarified when health data can be processed for infection prevention purposes under the GDPR. First of all, it is very likely that consent to the processing of health data for infection prevention purposes cannot be obtained freely given and would thus be invalid in nearly all practically relevant cases. However, without the consent of the data subject the processing of health data is only permissible in the exceptional cases according to Art. 9 para. 2 GDPR.  In the following this blog post therefore rather focuses on the options that are available without consent regarding the group of employees and visitors.

When is the employer allowed to collect and process health data of employees with regard to the corona virus, according to the GDPR?

Health data can be processed in the context of employment in the non-public sector to the extent that it is necessary for reasons of public interest in the area of public health (Art. 9 para. 2 lit. i) GDPR and local EU member state law, such as section 53 of the Irish Data Protection Act 2018 or § 22 para,. 1 lit. c) of the German Federal Data Protection Act) and/or to the extent that it is necessary for the fulfillment of rights and obligations in the context of the employment (Art. 9 para. 2 lit. b) GDPR together with a local EU member state law, such as the Irish Safety, Health and Welfare at Work Act 2005) as, e.g., the Irish and Hungarian Data Protection Authorities both stated (for the list of authority statements see our previous blog post part 1).

However, the employer has a duty of care, particularly with regard to the protection against the corona virus, which applies not only to the individual employee, but also to all employees as a whole. Accordingly, the employer is obliged to take proportionate measures to protect the health of its employees during working hours. In particular, this also includes measures against diseases such as the corona virus that are  notifiable under the local infection protection laws of EU member states.

Please note that, in accordance with the principle of data minimization, only the information that consists the strictly necessary health data is to be collected and processed. Therefore, it is recommend that employers should make use of other preventive measures (e.g. by teaching employees on infection prevention or providing them with hand disinfection or protective clothing) before considering means of data processing. Moreover, such health data is to be treated strictly confidential, both for the protection of the individual employee and to maintain the industrial peace and the operation of the company. If the employer should process personal data which are not health data, he can – after careful examination – also rely on Art. 6 Para. 1 lit. f) GDPR.

Does the employee have to report an infection?

The employee is also obliged to inform the employer of a corona infection, because of his fiduciary duty to the employer. This principle of loyalty also authorizes the employee to disclose personal data of other individuals in the business environment with whom he has had contact. This disclosure to the employer and the following assessment and storage of such information by the employer can be based on a legitimate interest of the employer under Art. 6 para. 1 lit. f) GDPR as well as on Art. 6 para. 1 lit. c) GDPR.

When is a company allowed to collect and process health data of visitors of its premises?

Since companies regularly welcome visitors and guests, there is also a strong interest of companies in taking precautionary measures to contain the virus. If health data would need to be processed for this purpose, this can be done after careful examination on the basis of Art. 9 para. 2 lit. i) GDPR and, if any, local EU member state law (such as mentioned above). In the case of other measures in which personal data other than health data are processed, the employer may rely on his legitimate interest pursuant to Art. 6 para. 1 lit. f) GDPR (cf. BfDI).

What measures are permitted with regard to the containment of the corona virus?

Examples of permissible measures “against” employees:

  • measures without data protection reference, such as hygiene regulations, general instructions (e.g., to stay at home if symptoms occur), cancellation/postponement of business trips, instruction to work remote from home, regularly inform about relevant news about the virus,
  • request for information on infection in case of justified suspicion,
  • requesting infected employees for information about contacted persons in the company environment,
  • request for information about whether they have been to a risk area after vacation or business trips,
  • processing of such information that have been proactively communicated by the employee, e.g. that there has been contact with a (potentially) infected individual,
  • obtain consent to store emergency contacts and private contact details for notification purposes, in case of emergencies and operational changes due to the corona virus.

Examples of non-acceptable measures “against” employees:

  • mandatory comprehensive questionnaires to the entire workforce (e.g. series of unreasonable surveys),
  • interviewing other workers to see if anyone of the staff has symptoms.

Examples of permissible measures for visitors or guests of the company:

  • measures without data protection reference, such as hygiene regulations, restriction of visiting possibilities, a notice to postpone the visit if having symptoms,
  • request for information on infection in case of justified suspicion,
  • requesting infected visitors or guests for information regarding contacted persons in the company.

Examples of unacceptable actions towards visitors or guests of the company:

  • general (comprehensive) request for health information without justified suspicion.

The series on Data Protection and Corona will be continued tomorrow with a blog post on Data Protection compliant remote work.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

Series on Data Protection and Corona – Part 3: Information Obligations, Measures and their assessment regarding Data Protection

23. March 2020

In the wake of the currently daily changing information about the COVID-19 virus, companies and employers are facing new challenges. On the one side, keeping their day to day business intact while preventing the spread of the pandemic, and on the other, comply with their obligations in regards to the processing of personal data.

While in the current situation it seems much more important to establish measures to keep the new Coronavirus from spreading, it is as important not to forget the data protection issues arising with such measures. In order to have the implemented measures working, it is to be expected that the employer is processing sensitive data, more importantly health data. However, these sensitive data cannot simply be processed without legal grounds, and following data protection obligations, especially information obligations.

In the following, we would like to inform about how to deal with the information obligations in Art.13 GDPR and potential legal grounds for the processing of personal data, which comes with the measures taken by employers or companies.

Information obligations and measures against employees

In order to fulfill the information obligations in case of employees, it is important to recognize the difference between measures where only general personal data is being collected and processed, and measures which require the collection and processing of sensitive data, in light of the current situation specifically health data.

If an employer asks his employee for information on their last trip or if they have been to a high risk country, the processing would only touch general personal data. The legal basis for the processing of this personal data would be Art. 6 I lit. f GDPR. In such a case, the processing will be based on the balancing of interests in favor of the company and their obligation to ensure employees’ safety.

Concerning measures which collect and process sensitive health data, as for example inquiries about symptoms or fever measurement at the entrance to buildings, the requirements of the GDPR are higher. It is generally not allowed to process health data, unless the law gives an exemption. In Germany, the legal basis for such measures would be Art.9 II GDPR, §26 BDSG. It is also important to note, that these types of measures cannot be made mandatory for the entirety of the staff, as stated by the different supervisory authorities in their statements.

It is important to keep in mind that Art.9 II GDPR is an opening clause, giving the different countries the opportunity to implement exemptions in national laws. Please refer to your country’s supervisory authority for potential exemptions in your country.

Furthermore, the supervisory authorities of different countries have already published a statement on potential measures and their legal basis, a list of which you can find in our first blog post of this series.

Information obligations and measures against third parties

In case of third parties, for example visitors or external clerks, employers cannot default to their obligation to ensure safety in the same way as they can with employees. Measures against third parties are therefore more delicate in their approach.

It is generally not possible to use Art. 9 II lit. a GDPR as legal basis, since the consent cannot be freely given under the aspect of insufficient information. Therefore, in Germany, the collection and processing of general and sensitive personal data in regards to third parties finds its legal basis under Art. 9 II lit. i GDPR, § 22 lit. d BDSG and Art. 9 II lit. g GDPR, §22 lit. c BDSG respectively.

Information necessary for Information Notices

First off, as presented above, it is necessary to differentiate between information obligations and measures against employees, and respective obligations and measures against third parties, e.g. visitors. Each requires a respective information notice in order to keep the different categories of data subjects compliantly informed.

During this ongoing pandemic situation, the different supervisory authorities, and in particular the German Data Protection Commissioner, have made it clear that, while there may be changes in regards to certain processing activities, the information obligations of processors will not become more lenient.

One of the main aspects remains the transparency (Art. 5 I sentence 1 lit. a GDPR), which finds its implementation in Art.13 and Art.14 GDPR. While the measures against the spread of the pandemic play an important role and broaden the processing permission of certain personal data, the data subjects need to be continuously informed about these measures, the processing and their legal grounds.

Overall, it is recommended to keep any information notices short but precise. Due to the nature of the crisis and the ever changing situation, giving the necessary requirements of information on the processor and the nature of the processing helps to prevent confusion and keep everything concise.

In particular, in a first instance of the obligations from Art.13 GDPR, it is necessary to define the purpose of the processing. Due to the health implications and broad risk of the virus, the purpose for the processing consists of the containment of the pandemic. Secondly, there needs to be a legal basis. For measures of processing and legal basis respectively, please refer to the points above. Not to forget, it is required to precisely list the different personal data collected.

If the processing follows the balancing of interests in Art.6 I lit. f GDPR, it is further necessary to present the assessments made. While the data subjects’ interest of non-processing of their personal data stands, the employer’s interest to keep their employees from getting infected and further spreading the virus outweighs the data subjects’ interest in this case.

Furthermore, it is imperative that the personal data collected in these cases are not transferred, neither to third parties, nor to third countries. The nature of these personal data is highly sensitive, and therefore not to be disclosed.

Accordingly, it is to be expected that the retention period for such personal data has to be kept relatively short. In any case, it is recommended that the retention of the collected data should not exceed 8 weeks. This time frame can vary depending on the duration of the pandemic outbreak, and therefore can be adjusted, but a deletion has to occur latest with the end of the pandemic.

Overall, due to the daily changing nature of the situation, it is important to keep up to date with supervisory authorities’ statements and handling of the arising issues. We recommend keeping informed about the different legal opinions of the authorities in regards to certain measures, while these very new circumstances unfold, and potentially adjust information notices as the need arises. You may also find further information on the processing of personal data in connection to the new Coronavirus in our previous blog post.

The series on data protection and corona will be continued tomorrow with a contribution on the subject of the processing of health data to protect from corona infections.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

Series on Data Protection and Corona – Part 2: Data processing in connection with the coronavirus

20. March 2020

In the course of the coronavirus, the employer is in a field of tension between, on the one hand, the protection of his own employees, the safeguarding of the operational procedures and the containment of the pandemic, and, on the other hand, the requirements that are placed on him in regard to data processing, in particular the processing of health data.

Some may not consider compliance with data protection requirements to be of paramount importance in the current situation.

Nevertheless, the data processing, especially the processing of sensitive data, should comply with the data protection requirements of the DSGVO and national data protection implementation law.

In Part 1 of the series we gave you a short overview on statements of the European Data Protection Authorities (DPA), which have been published by now. With this blog post we want to inform you on data processing in connection with the coronavirus.

Measures required by data protection law

The necessary measures to be observed and carried out in case of data processing relating to coronavirus do not differ fundamentally from those which must also be taken in any other data processing. The statements of the DPAs also do not indicate any relaxation with regard to data protection regulations.

These required measures include, among others:

  • the comprehensive information of the concerned data subjects according to Art. 13 (in this context, reference is already made to tomorrow’s article, which deals with this topic in detail),
  • the secure storage of personal data – further information on this will follow in the course of this article,
  • the maintenance of a records of processing activities pursuant to Art. 30 para. 1 GDPR.

Secure storage of personal data

If the data processing is based on a legal basis from Art. 9 para. 2 DSGVO several data security measures must be taken into account to ensure the security of the data processing.

Without claiming to be exhaustive, the following measures will be discussed here, with examples given:

  • Sensitisation of those involved in processing operations;
    • data protection training of the employees involved in data processing,
    • raising awareness of the particular importance of sensitive data, such as health data,
    • Reference to compliance with data protection standards, even in times of the Corona crisis.
  • Designation of a data protection officer;
    • if you are unsure whether and how you process personal data, appoint a data protection officer,
    • o If you have already appointed a data protection officer, please contact him or her and ask for support.
  • Restriction of access to personal data within the responsible body and by contract processors;
    for example, through:

    • Introduction of an access concept and adherence to the ‘need-to-know principle’ – make sure that the circle of people with access rights is as small as possible,
    • Locked storage of paper-bound documents, e.g. in a safe or at least a lockable cabinet (the power of the keys should of course also be limited),
    • Password-protected digital documents (restrictive passing on of the password under consideration of the ‘need-to-know principle’).

The series on Data Protection and Corona will be continued tomorrow with a blogpost on “Tips for Information Notices”.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

Series on Data Protection and Corona – Part 1: Statements of the European Data Protection Authorities

19. March 2020

The Coronavirus is omnipresent at the moment and affects each and every one of us.

Even if it is not obvious at first, data protection and the Coronavirus certainly have points of contact, namely when personal data is processed in relation to the virus. This can be the case both in the employment context and also in relation to visitors and suppliers to a company. For example, in order to protect their own employees, one company may conduct access controls at the entrance to the company’s premises, while another company may ask their own employees about symptoms of the virus.

We would like to discuss these and other topics related to “Data Protection and Corona” with you in the next few days.

Today we would like to start this series by summarising the statements made so far by various European data protection authorities.

Legal basis for processing

The legal basis for the respective collection or processing of personal data within ann EU context can be found in the EU General Data Protection Regulation (GDPR) in conjunction with the respective national/state data protection laws and technical laws.

The legal basis for processing personal data follows from Art. 6 GDPR and for processing sensitive personal data, like health data, from Art. 9 GDPR.

Consent, pursuant to Art. 6 para. 1 s. 1 lit. a) GDPR and Art. 9 para. 2 lit. a) GDPR, should only be used as a legal basis if the data subjects have been fully informed about the data processing and have given their voluntary consent to a measure.

For the processing of personal employee data by public employers, the legal basis will be Art. 6 para. 1 s. 1 lit. e) GDPR. In this case, the data protection authorities recognise a measure in the public interest. Non-public employers act within the scope of their obligations arising from the employment relationship, Art. 6 para. 1 s. 1 lit. f) GDPR. In this context, special regulations from a member state’s collective bargaining law, labour law and social law may also need to be consulted. In the case of sensitive data processing the escape clause of Art. 9 para. 2 lit. b) GDPR in conjuction with the respective member state law must be observed.

In relation to processing the personal data of third parties, e.g. guests or visitors, measures taken by public authorities must be based on Art. 6 para. 1 s. 1 lit. c) and e) GDPR, and if necessary, in conjunction with the respective member state laws. For measures taken in the non-public sector, Art. 6 para. 1 s. 1 lit. f) may serve as a legal basis. When processing sensitive data of third parties, Art. 9 para. 2 lit. i) in conjunction with member state laws may be applicable.

List of Statements

In the following, we provide you a comprehensive list of statements made by various European data protection authorities on the processing of personal data in light of the Coronavirus up to this point:

The series on Data Protection and Corona will be continued tomorrow with a blogpost on “Data Protection in connection with the coronavirus”.

For up-to-date information (in German) you are welcome to follow us on Twitter.

We wish you all the best, stay healthy and protect yourself and others.

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