Special categories of personal data
Special categories of personal data are also referred to as particularly sensitive data. This includes data on the racial or ethnic origin of data subjects, their political opinion, their religious or philosophical beliefs or their trade union membership. Genetic data, biometric data, health data, data on sex life and sexual orientation are also considered particularly sensitive.
These data may only be processed in special cases, for example if data subjects have expressly consented to it or if they have obviously made the data publicly accessible. Processing of health-related data, for example in a doctor’s office or a hospital, is generally possible, but there are strict confidentiality regulations. These data may only be processed by qualified personnel subject to professional secrecy.
In Germany, the Federal Data Protection Act regulates exceptions in the area of research and statistics in which the processing of sensitive data is also possible without the consent of the data subject.
Article 9 GDPR (Processing of special categories of personal data)
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.
Source: Regulation (EU) 2016/679 (see also recitals 46, 51, 52, 53, 54, 55 and 56)
Section 22 BDSG (Processing of special categories of personal data)
(1) By derogation from Article 9 (1) of Regulation (EU) 2016/679, the processing of special categories of personal data as referred to in Article 9 (1) of Regulation (EU) 2016/679 shall be permitted
1. by public and private bodies if
a) processing is necessary to exercise the rights derived from the right of social security and social protection and to meet the related obligations;
b) processing is necessary for the purposes of preventive 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 or pursuant to the data subject’s contract with a health professional and if these data are processed by health professionals or other persons subject to the obligation of professional secrecy or under their supervision; or
c) 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; in addition to the measures referred to in subsection 2, in particular occupational and criminal law provisions to ensure professional secrecy shall be complied with;
2. by public bodies if
a) processing is urgently necessary for reasons of substantial public interest;
b) processing is necessary to prevent a substantial threat to public security;
c) processing is urgently necessary to prevent substantial harm to the common good or to safeguard substantial concerns of the common good; or
d) processing is necessary for urgent reasons of defence or to fulfil supra- or intergovernmental obligations of a public body of the Federation in the field of crisis management or conflict prevention or for humanitarian measures;
and as far as the interests of the controller in data processing in the cases of no. 2 outweigh the interests of the data subject.
(2) In the cases of subsection 1, appropriate and specific measures shall be taken to safeguard the interests of the data subject. Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, these measures may include in particular the following:
1. technical organizational measures to ensure that processing complies with Regulation (EU) 2016/679;
2. measures to ensure that it is subsequently possible to verify and establish whether and by whom personal data were input, altered or removed;
3. measures to increase awareness of staff involved in processing operations;
4. designation of a data protection officer;
5. restrictions on access to personal data within the controller and by processors;
6. the pseudonymization of personal data;
7. the encryption of personal data;
8. measures to ensure the ability, confidentiality, integrity, availability and resilience of processing systems and services related to the processing of personal data, including the ability to rapidly restore availability and access in the event of a physical or technical incident;
9. a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing;
10. specific rules of procedure to ensure compliance with this Act and with Regulation (EU) 2016/679 in the event of transfer or processing for other purposes.
Source: German Federal Data Protection Act
Section 27(1) BDSG (Data processing for purposes of scientific or historical research and for statistical purposes)
By derogation from Article 9 (1) of Regulation (EU) 2016/679, the processing of special categories of personal data as referred to in Article 9 (1) of Regulation (EU) 2016/679 shall be permitted also without consent for scientific or historical research purposes or statistical purposes, if such processing is necessary for these purposes and the interests of the controller in processing substantially outweigh those of the data subject in not processing the data.
The controller shall take appropriate and specific measures to safeguard the interests of the data subject in accordance with Section 22 (2), second sentence.
Source: German Federal Data Protection Act
Section 28(1) BDSG (Data processing for archiving purposes in the public interest)
By derogation from Article 9 (1) of Regulation (EU) 2016/679, the processing of special categories of personal data as referred to in Article 9 (1) of Regulation (EU) 2016/679 shall be permitted if necessary for archiving purposes in the public interest.
The controller shall take appropriate and specific measures to safeguard the interests of the data subject in accordance with Section 22 (2), second sentence.
