The right to data protection and the COVID-19 pandemic: the European approach
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The right to data protection and the COVID-19 pandemic: the European approach Magdalena K˛edzior1
Accepted: 19 November 2020 / Published online: 7 December 2020 © The Author(s) 2020
1 Introduction and background 2020 has been marked by the unprecedented outbreak of the COVID-19 pandemic. Its complex impact on EU policy-making and numerous implications for the EU legal order have been reflected in the content of nearly all events organised by ERA in the second half of 2020. The pandemic created a need for organisations – including the EU institutions – to reinvent their activities by adopting additional safety measures, by allowing employees to work from home and/or by switching to an entirely online working environment. Preventive measures adopted by organisations happen to include the processing of information concerning the movement of employees, such as location data, as well as concerning one of the most vulnerable categories of data, which is health data. Against the background of these developments since the outbreak of the coronavirus pandemic, Member States, backed by the European Commission, have been assessing the effectiveness, security, privacy, and data protection aspects of digital solutions to address the crisis. The question instinctively posed has been whether the GDPR and other data protection laws1 hinder the processing of personal data, considered necessary to fight the pandemic, and if so, then under which conditions.2 1 Directive 2002/58 on the processing of personal data and the protection of privacy in the electronic
communications sector. OJ L201, of 2002-07-31, pp. 37 – 47, https://eur-lex.europa.eu/legal-content/EN/ TXT/PDF/?uri=CELEX:32002L0058&from=EN [10.10.2020]. 2 E. Ventrella, Privacy in emergency circumstances: Data Protection and the COVID-19 pandemic, ERA
Forum 3/2020, p. 2. One should bear in mind that any measure restricting data protection rights in the
B M. K˛edzior
[email protected]
1
Senior Lawyer/Course Director, ERA, Trier, Germany
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M. K˛edzior
The reflections that follow touch upon major legal challenges that have been identified on the EU level with regard to safeguarding privacy when fighting the pandemic and the approach taken to these challenges by the EU institutions. This contribution aims therefore to map the EU’s approach to COVID-19 with regard to privacy and data protection, to identify the areas that cooperation at European level has been focusing upon and to determine the added value thereof. Beyond this, the question of what might have been the possible obstacles to a more harmonised approach towards fighting the pandemic in the EU Member States will also be considered.
2 Legal challenges regarding data protection rights 2.1 General remarks Measures undertaken to fight and protect against COVID-19 have given rise to significant legal implications for the rights and freedoms of individuals. Discussions and controversies focused around several topics such as the processing of employees’ personal data (including health data) by employers; workplace
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