Sensitive Data
GDPR
Article 6
Lawfulness of processing
1. Processing shall be lawful only if and to the extent that at least one of the following applies:
(a)
the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
(b)
processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
(c)
processing is necessary for compliance with a legal obligation to which the controller is subject;
(d)
processing is necessary in order to protect the vital interests of the data subject or of another natural person;
(e)
processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f)
processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.
2. Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for compliance with points (c) and (e) of paragraph 1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing including for other specific processing situations as provided for in Chapter IX.
3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:
(a)
Union law; or
(b)
Member State law to which the controller is subject.
The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing such as those for other specific processing situations as provided for in Chapter IX. The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued.
4. Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject’s consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1), the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia:
(a)
any link between the purposes for which the personal data have been collected and the purposes of the intended further processing;
(b)
the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller;
(c)
the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to Article 9, or whether personal data related to criminal convictions and offences are processed, pursuant to Article 10;
(d)
the possible consequences of the intended further processing for data subjects;
(e)
the existence of appropriate safeguards, which may include encryption or pseudonymisation.
Article 7
Conditions for consent
1. Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.
2. If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding.
3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.
4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.
Article 8
Conditions applicable to child’s consent in relation to information society services
1. Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child.
Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.
2. The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology.
3. Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child.
Article 9
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.
Article 10
Processing of personal data relating to criminal convictions and offences
Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.
Article 11
Processing which does not require identification
1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.
2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.
Data Protection Act 2018
CHAPTER 2
Processing of special categories of personal data and processing of personal data relating to
criminal convictions and offences
Processing of special categories of personal data
39. Subject to compliance with the Data Protection Regulation and any other relevant
enactment or rule of law, the processing of special categories of personal data shall be
lawful to the extent authorised by Article 9, section 35 and sections 40 to 48.
Processing of special categories of personal data for purposes of employment and social welfare law
40. Subject to suitable and specific measures being taken to safeguard the fundamental rights
and freedoms of data subjects, the processing of special categories of personal data shall
be lawful where the processing is necessary for the purposes of exercising or performing
any right or obligation which is conferred or imposed by law on the controller or the data
subject in connection with employment or social welfare law.
Processing of special categories of personal data for purpose of legal advice and legal proceedings
41. The processing of special categories of personal data shall be lawful where the
5
processing—
(a) is necessary for the purposes of providing or obtaining legal advice or for the
purposes of, or in connection with, legal claims, prospective legal claims, legal
proceedings or prospective legal proceedings, or
(b) is otherwise necessary for the purposes of establishing, exercising or defending
legal rights.
Processing of personal data revealing political opinions for purpose of electoral activities
42. Subject to suitable and specific measures being taken to safeguard the fundamental rights
and freedoms of data subjects, the processing of personal data revealing political
opinions shall be lawful where the processing is carried out in the course of election
activities for the purpose of compiling data on peoples’ political opinions by—
(a) a political party,
(b) a body established by or under an enactment (other than the Act of 2014 or a
former enactment relating to companies within the meaning of section 5 of that
Act), or
(c) a candidate for election to, or a holder of, elective political office.
Processing of special categories of personal data for purposes of administration of justice
and performance of functions
43. Subject to suitable and specific measures being taken to safeguard the fundamental rights
and freedoms of data subjects, the processing of special categories of personal data shall
be lawful where the processing respects the essence of the right to data protection and is
necessary and proportionate for—
(a) the administration of justice, or
(b) the performance of a function conferred on a person by or under an enactment or
by the Constitution.
Processing of special categories of personal data for insurance and pension purposes
44. Subject to suitable and specific measures being taken to safeguard the fundamental rights
and freedoms of data subjects, the processing of data concerning health shall be lawful
where the processing is necessary and proportionate for the purposes of the following:
(a) a policy of insurance or life assurance,
(b) a policy of health insurance or health-related insurance,
(c) an occupational pension, a retirement annuity contract or any other pension
arrangement, or
(d) the mortgaging of property.
Processing of special categories of personal data for reasons of substantial public interest
45. (1) Processing of special categories of personal data shall be lawful where the processing
is carried out in accordance with regulations made under subsection (2).
(2) Regulations may be made authorising the processing of special categories of personal
data where the processing is necessary for reasons of substantial public interest and
without prejudice to the generality of the foregoing, such regulations shall—
(a) identify the substantial public interest concerned, and
(b) comply with section 32(6).
(3) Regulations may be made under subsection (2) by—
(a) the Minister, following consultation with such other Minister of the Government
as he or she considers appropriate and the Commission, or
(b) any other Minister of the Government following consultation with the Minister,
such other Minister of the Government as he or she considers appropriate and the
Commission.
(4) The Minister or any other Minister of the Government, as the case may be, making
regulations under subsection (2) shall have regard to the need for the protection of
individuals with regard to the processing of their personal data and without prejudice
to the generality of that need, have regard to—
(a) the nature, scope and purposes of the processing,
(b) the nature of the substantial public interest concerned,
(c) any benefits likely to arise for the data subjects concerned,
(d) any risks arising for the rights and freedoms of such subjects, and
(e) the likelihood of any such risks arising and the severity of such risks.
(5) Regulations made under subsection (2) shall—
(a) respect the essence of the right to data protection, and
(b) enable processing of such data only in so far as is necessary and proportionate to
the aim sought to be achieved.
Processing of special categories of personal data for purposes of Article 9(2)(h)
46. (1) Subject to subsection (2) and to suitable and specific measures being taken to
safeguard the fundamental rights and freedoms of data subjects, the processing of
special categories of personal data shall be lawful where it is necessary—
(a) for the purposes of preventative or occupational medicine,
(b) for the assessment of the working capacity of an employee,
(c) for medical diagnosis,
(d) for the provision of medical care, treatment or social care,
(e) for the management of health or social care systems and services, or
(f) pursuant to a contract with a health professional.
(2) Processing shall be lawful in accordance with subsection (1) where it is undertaken by
or under the responsibility of—
(a) a health practitioner, or
(b) a person who in the circumstances owes a duty of confidentiality to the data
subject that is equivalent to that which would exist if that person were a health
practitioner.
(3) In this section, “health practitioner” has the same meaning as it has in the Health
Identifiers Act 2014.
Processing of special categories of personal data for purposes of public interest in the area
of public health
47. Subject to suitable and specific measures to safeguard the fundamental rights and
freedoms of data subjects, the processing of special categories of personal data shall be
lawful where it is necessary for public interest reasons in the area of public health
including—
(a) protecting against serious cross-border threats to health, and
(b) ensuring high standards of quality and safety of health care and of medicinal
products and medical devices.
Processing for archiving in the public interest, scientific or historical research or statistical purposes
48. Subject to compliance with section 36, the processing of special categories of personal
data is lawful where such processing is necessary and proportionate for—
(a) archiving purposes in the public interest,
(b) scientific or historical research purposes, or
(c) statistical purposes.
Processing of personal data relating to criminal convictions and offences
49. (1) Without prejudice to the Criminal Justice (Spent Convictions and Certain
Disclosures) Act 2016 and subject to compliance with Article 6(1) and to suitable and
specific measures being taken to safeguard the fundamental rights and freedoms of the
data subject, personal data referred to in Article 10 (in this section referred to as
“Article 10 data”) may be processed—
(a) under the control of official authority, or
(b) where—
(i) the data subject has given explicit consent to the processing for one or more
specified purposes except where the law of the European Union or the law of
the State prohibits such processing,
(ii) processing is necessary and proportionate for the performance of a contract
to which the data subject is a party or in order to take steps at the request of
the data subject prior to entering into a contract,
(iii) processing is—
(I) necessary for the purpose of providing or obtaining legal advice or for
the purposes of, or in connection with, legal claims, prospective legal
claims, legal proceedings or prospective legal proceedings, or
(II) otherwise necessary for the purposes of establishing, exercising or
defending legal rights,
(iv) processing is necessary to prevent injury or other damage to the data subject
or another person or loss in respect of, or damage to, property or otherwise to
protect the vital interests of the data subject or another person, or
(v) processing is permitted in regulations made under subsection (3) or is
otherwise authorised by the law of the State.
(2) Processing under the control of official authority referred to in subsection (1)(a)
includes processing required for the following purposes:
(a) the administration of justice;
(b) the exercise of a regulatory, authorising or licensing function or determination of
eligibility for benefits or services;
(c) protection of the public against harm arising from dishonesty, malpractice,
breaches of ethics or other improper conduct by, or the unfitness or incompetence
of, persons authorised to carry on a profession or other activity;
(d) enforcement actions aimed at preventing, detecting or investigating breaches of
the law of the European Union or the law of the State that are subject to civil or
administrative sanctions;
(e) archiving in the public interest, scientific or historical research purposes or
statistical purposes where the processing is carried out in accordance with section
36 for those purposes by or on behalf of a public authority or public body.
(3) Without prejudice to the Criminal Justice (Spent Convictions and Certain
Disclosures) Act 2016 and subject to compliance with Article 6(1), to suitable and
specific measures being taken to safeguard the fundamental rights and freedoms of the
data subject and subject to subsection (6), regulations may be made permitting the
processing of Article 10 data where the processing is necessary to—
(a) assess the risk of fraud or prevent fraud, or
(b) ensure network and information systems security, and prevent attacks on and
damage to computer and electronic communications systems.
(4) Regulations may be made under subsection (3) by—
(a) the Minister, following consultation with such other Minister of the Government
as he or she considers appropriate and the Commission, or
(b) any other Minister of the Government following consultation with the Minister,
such other Minister of the Government as he or she considers appropriate and the
Commission.
(5) The Minister or any other Minister of the Government, as the case may be, making
regulations under subsection (3) shall have regard to the need for the protection of
individuals with regard to the processing of their personal data and without prejudice
to the generality of that need, have regard to—
(a) the nature, scope and purposes of the processing,
(b) any risks arising for the rights and freedoms of individuals, and
(c) the likelihood of any such risks arising and the severity of such risks.
(6) A person who knowingly or recklessly contravenes this section or any regulations
made under subsection (3) commits an offence and is liable—
(a) on summary conviction to a class A fine or imprisonment for a term not
exceeding 12 months or both, or
(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for
a term not exceeding 5 years, or both.
(7) In this section, “Article 10 data” shall include personal data relating to the alleged
commission of an offence and any proceedings in relation to such an offence.