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.

What does it mean?

Sensitive personal data is explicitly defined in the GDPR, and the access to process such information is narrower than for ordinary personal data. 

Sensitive personal data relates to:

  • racial and ethnic origin
  • Political beliefs
  • Religious or philosophical beliefs
  • Trade union membership
  • Genetic data
  • Biometric data for unique identification purposes
  • Health information
  • Sexual orientation or relationship.

 

Only the data mentioned above are sensitive personal data. The GDPR categorises all other personal data as non-sensitive if they are not ‘sensitive’.

Sensitive personal data covers race, political opinions, religious beliefs, health data and sexual orientation. These are all personal data categories used to persecute people in some countries.

Generally, it is prohibited to process sensitive personal data, but there are some exceptions to this prohibition. 

You can process sensitive personal data without consent if the data subject has made the data public in advance.

In addition, you can process sensitive personal data if it is necessary for:

  • The controller’s or data subject’s employment, health, and social security obligations and rights.
  • The data subject’s vital interests or another natural person if consent is impossible.
  • A political, philosophical, religious or trade union non-profit organisation processing membership data or regular contact data (Does not include disclosure outside the organisation).
  • The establishment or processing of a legal claim.
  • Substantial public interest.
  • Processing of a health professional nature within the health sector.
  • Processing for archival, scientific or historical research purposes or statistical purposes.

 

When processing sensitive data, in addition to having a legal basis, you must also be able to identify one of the exceptions to the prohibition of processing sensitive data. Without this you will be allowed to lawfully process sensitive personal data.

Confidential data is a particular category of personal data not explicitly mentioned in the GDPR but where specific safeguards would be relevant for applying the GDPR given their character. Moreover, confidential data will often be subject to specific regulations in other legislation. 

Sensitive personal data will undoubtedly be confidential data. Conversely, confidential information is not always sensitive. 

Non-sensitive personal data may be confidential in certain situations. This applies, for example, to information of a purely objective nature, such as information on issuing passports, driving licences, hunting licences, etc. This may be the case for income, assets, employment, education and training information. The same applies to the information on internal family relationships, including information on, for example, suicide attempts and accidents.

Yes, most companies treat sensitive personal data concerning their employees, e.g. if they process information concerning their employees’ affiliation with a labour union. You will also be processing sensitive personal data concerning employees if you register information about their health situation if they are on sick leave.

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