On March 12, 2020, the UK Supervisory Authority (“ICO”) issued a statement on data protection and coronavirus (“COVID-19”).  The statement makes clear that the ICO will take a “reasonable and pragmatic” approach regarding compliance with the GDPR in light of the current health emergency.

Similar to the Irish Supervisory Authority (see our previous blog here), the ICO stressed that data protection law does not stand in the way of addressing the challenges posed by the COVID-19 pandemic.  It also emphasized that, in light of the severity of the present crisis, the ICO will adopt a pragmatic approach regarding enforcement, and will not “penalise organisations that … need to prioritise other areas or adapt their usual approach during this extraordinary period”.  This is reflected in the ICO’s views on the following matters:

Data subjects’ requests: The ICO stated that it will not take regulatory action against organizations that will not manage to respond to information rights requests within the statutory deadlines.  In this regard, the ICO will inform data subjects through its communications channels that they may experience understandable delays when making information rights requests during the pandemic.

Security of personal data and homeworking: The ICO made clear that data protection law does not prevent homeworking, and it advised that companies consider the same kinds of security measures for homeworking that they would use in normal circumstances.

Collection of health data about employees or visitors: According to the ICO, it is reasonable to ask people whether they have visited a particular country, or are experiencing COVID-19 symptoms.  This is a frequently raised concern for many organizations intending to protect the health and safety of their staff.  However, companies should not collect more data than they need, and ensure that any information they collect is treated with appropriate safeguards.

 Confidentiality and sharing information within a company: The ICO took the view that an employer may inform its staff that there has been a case, or suspected case, of COVID-19 in its organization in order to discharge a duty of care and protect their health and safety, but it advised that it is “probably” not necessary to name the affected individual(s), suggesting that organizations will need to consider whether actually sharing a person’s name is strictly required to protect the well-being of others.

Sharing employees’ health information with public authorities: The ICO held that, while it is unlikely that companies will be asked to share information about specific individuals with public authorities, data protection law would not prevent that.

As we have previously reported (see our blogs here, here, here, here, and here), numerous other EU supervisory authorities have published similar guidance, but have sometimes taken an approach that is stricter than the ICO’s.  This might call for the intervention of the European Data Protection Board (“EDPB”) at some point.

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Photo of Dan Cooper Dan Cooper

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws…

Daniel Cooper heads up the firm’s growing Data Privacy and Cybersecurity practice in London, and counsels clients in the information technology, pharmaceutical research, sports and financial services industries, among others, on European and UK data protection, data retention and freedom of information laws, as well as associated information technology and e-commerce laws and regulations. Mr. Cooper also regularly counsels clients with respect to Internet-related liabilities under European and US laws. Mr. Cooper sits on the advisory boards of a number of privacy NGOs, privacy think tanks, and related bodies.