On 20 March the EDPB made a statement on processing of personal data in the context of coronavirus. The European Data Protection Board (EDPB) is the European body tasked with providing guidance aimed at ensuring consistent application of data protection regulations throughout member states.
During the Brexit transition period and likely afterward, EDPB statements will inform the Information Commissioner’s Office (ICO) approach. While the ICO have already provided some detail on their own website, the EDBP statement provides useful additional detail for businesses and organisations unsure of their data protection obligations during the pandemic.
The EDPB acknowledged that tackling the disease should be supported but said that controllers and processors must still process personal data lawfully.
With regard to restricting data subjects’ rights (i.e. allowing data controllers to do things otherwise not usually permitted) emergency is a legal condition which may legitimise restrictions provided they are proportionate and limited to the emergency.
The EDPB highlighted that the GDPR already allows authorities and employers to process personal data in an emergency without consent. For example where they have lawful authority, where it is necessary for reasons of substantial public interest in the area of public health and to protect an individual's vital interests. The GDPR specifically refers to the control of an epidemic at recital 46.
In an employment context, processing may also be necessary for compliance with a legal obligation such health and safety or in the public interest (to counter threats to health).
The EDPB remind data controllers that the law must still be adhered to, so personal data should be processed for specified and explicit purposes and privacy notices need to inform data subjects about how the pandemic may change how their personal data is processed. Data protection policies should still prohibit data from being unlawfully disclosed. If decisions are taken to process data as a consequence of the epidemic these should be documented.
A copy of the EDPB statement can be viewed here
The ICO’s guidance can be viewed here