On March 16, 2020, the Chair of the European Data Protection Board (“EDPB”), Andrea Jelinek, issued a statement on the processing of personal data in the context of the COVID-19 outbreak.

The statement made clear that EU data protection law does not stand in the way of the adoption of measures to fight against the Coronavirus pandemic.  However, it stressed that controllers (including employers), as well as governments, should be mindful of a number considerations when adopting measures to fight the pandemic that involve the processing of personal data.

First, with regard to legal bases, the EDPB notes that the GDPR provides for several legal grounds that enable companies and public authorities to process personal data in the context of the COVID-19 pandemic, without the consent of data subjects.  The statement specifically mentions the following legal bases as relevant in the present context:  processing that is “necessary for reasons of public interest in the area of public health” (Article 9(2)(i) GDPR); processing that is “necessary to protect the vital interests of the data subject or of another natural person” (Articles 6(1)(d) and 9(2)(c) GDPR); and processing that is “necessary for compliance with a legal obligation” (Articles 6(1)(c) and 9(2)(b) GDPR).  This suggests that the EDPB is open to the possibility of allowing companies to engage in the collection of personal data of their employees and others, including health data, to prevent the spread of the disease, at least if this is done in a proportionate manner.

Second, with regard to the processing of electronic communication data (e.g., mobile location data), Ms. Jelinek observes that national laws implementing the ePrivacy Directive provide that location data can only be used by the relevant service provider when the data are made anonymous (e.g., by aggregation), or with the consent of the affected individuals.  This would allow public authorities to generate reports on the concentration of mobile devices at a certain location, normally based on aggregated data.

When it is not possible to only process anonymous location data, the ePrivacy Directive allows Member States to provide for the processing of identifiable electronic communication data, without the consent of the affected individuals, under their emergency legislation.   However, such legislation must be necessary, appropriate and proportionate.  In particular, it must provide for adequate safeguards, such as granting individuals the right to a judicial remedy.  In this regard, it should be noted that several Member States have adopted, or are in the process of adopting, emergency legislation to fight the virus, and may decide to make use of their discretionary powers to allow mobile device tracking as a measure to limit the spread of the disease.

The publication of the EDPB statement follows the publication of similar statements by several other European regulators, including those of Belgium, Czech RepublicDenmarkFinlandFranceGermanyHungaryIceland, IrelandLichtensteinLithuaniaLuxembourgthe NetherlandsNorwaySlovakiaSloveniaSpainSwedenPoland and the UK. Covington will continue to monitor developments in this area.