What is special category data?
Personal data is information that relates to an identifiable individual or data subject. Sensitive personal data is that falling into special categories as defined by the GDPR.
Special category data includes gathered, inferred or guessed details about someone which fall into one of the categories below. It depends on how certain that inference is and whether you are deliberately drawing that inference.
The GDPR defines special category data as:
- Personal data relating to racial or ethnic origin;
- Personal data relating to political opinions;
- Personal data relating to religious or philosophical beliefs;
- Personal data relating to trade union membership;
- Genetic data;
- Biometric data (where it is used for identification purposes);
- Data relating to health;
- Data about a person's sex life;
- Data about a person's sexual orientation.
Tips for dealing with sensitive personal data
1. Be clear what data is special category data
Make sure you're clear about what is classed as sensitive personal data (special category data). Broadly, as previously under the Data Protection Act, it includes any data relating to race or ethnic origin, religious or political beliefs (including trade union membership), data on health, sex life or sexual orientation. However, under GDPR, special category data also includes genetic and biometric data (see Article 9).
2. Assess your current data processes
Find out what special category personal data is currently collected and processed by your firm. Is it legitimate and lawful?
3. Be clear about the legal basis for processing
Ensure that you accurately record the legal basis for your data processing. For example, whether you have explicit consent, whether it is required for the performance of specific contracts, or for other specific purposes (such as the public interest or the vital interests of an individual).
4. Assess the impact of holding the data
Conduct a Data Protection (DPIA) and/or Privacy Impact Assessment (PIA). We all have a duty to do so where there is a high risk to the rights or freedoms of data subjects. Remember, individual consent may not be enough and you may also need processing to be sanctioned by the data protection authority where risks are high.
5. Take extra care with health-related data
The definition of health data is broad under GDPR and includes past, present or future physical or mental health, information from testing or examination of a body part or bodily substance, genetic and biological samples, information on diseases or risk, disability, medical history, clinical treatment, and so on. Be aware that the different EU Member States may also have separate regimes.
6. And with criminal offence data
Criminal offence data are dealt with separately under GDPR (see Article 10) and this type of data is now subject to greater restrictions.
Special category data post-pandemic
As part of any risk assessment of any workplace post-COVID, you must now:
- Identify what work activity or situations might cause transmission of Coronavirus
- Think about who could be at risk
- Decide how likely it is that someone could be exposed
- Act to remove the activity or situation, or if this isn’t possible, control the risk
This means that all employers are now obliged to collect sensitive personal data that they may never have dreamed of collecting in the past.
And for those in public-facing businesses, the obligation may extend even further. In all these cases, you may unknowingly be collecting, processing and storing special category data.
Consequences of misusing special category data
In France, Facebook was fined €150k by CNIL, the data protection regulator, for collecting user data without their consent or without a legal basis.
Whilst the Dutch data regulator also found evidence that Facebook had used sensitive personal data on sexual preferences to target adverts but chose not to impose any financial penalty.
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