Understanding Sensitive Personal Data Under the GDPR

The General Data Protection Regulation (GDPR), implemented in 2018, represents a cornerstone of data privacy law in the European Union and has had a global impact on how organizations handle personal information. At the heart of this regulation lies the crucial concept of ‘sensitive personal data.’ This category of data is afforded the highest level of protection due to the significant risks to an individual’s fundamental rights and freedoms if it is mishandled. Understanding what constitutes sensitive personal data, the specific legal grounds for its processing, and the stringent obligations placed on data controllers and processors is not just a legal necessity but a critical component of building trust and ensuring ethical data practices in the digital age.

GDPR Article 9 provides a specific definition for what it terms ‘special categories of personal data,’ which is universally referred to as sensitive personal data. This is data that, by its very nature, requires careful handling because its misuse could lead to discrimination, identity theft, reputational damage, or other significant harm. The regulation explicitly lists the following types of information as sensitive:

• Personal data revealing racial or ethnic origin.
• Political opinions.
• Religious or philosophical beliefs.
• Trade union membership.
• Genetic data.
• Biometric data processed for the purpose of uniquely identifying a person.
• Data concerning health.
• Data concerning a person’s sex life or sexual orientation.

It is vital to distinguish this from ‘regular’ personal data, such as a name, email address, or IP address. While all personal data is protected under the GDPR, the rules for sensitive data are far more restrictive. For instance, a data breach involving an email list is serious, but a breach involving an individual’s health records or religious beliefs carries a much greater potential for profound and lasting harm to the individual.

The default position under the GDPR is a general prohibition on processing sensitive personal data. This means that you cannot collect, store, use, or share this information unless you can demonstrate that you fall under one of the specific, limited exceptions outlined in Article 9(2). These conditions are intentionally narrow and must be interpreted strictly. The primary legal bases for processing sensitive data include:

1. Explicit Consent: The individual has given their clear, specific, and unambiguous consent for one or more specified purposes. This consent must be a freely given, informed, and affirmative act. It cannot be inferred from silence or pre-ticked boxes and must be as easy to withdraw as it is to give.
2. Employment, Social Security, and Social Protection Law: Processing is necessary for carrying out obligations and exercising specific rights in the field of employment, social security, and social protection law.
3. Vital Interests: 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. This is typically reserved for life-or-death medical emergencies.
4. Legitimate Activities of Not-for-Profit Bodies: Processing is carried out in the course of its legitimate activities by a foundation, association, or any other not-for-profit body with a political, philosophical, religious, or trade union aim, and with appropriate safeguards.
5. Data Made Public by the Data Subject: The processing relates to personal data that has been manifestly made public by the data subject.
6. Legal Claims or Judicial Acts: Processing is necessary for the establishment, exercise, or defense of legal claims or whenever courts are acting in their judicial capacity.
7. Reasons of Substantial Public Interest: Processing is necessary for reasons of substantial public interest, based on Union or Member State law, which must be proportionate to the aim pursued and include specific measures to safeguard the fundamental rights of the data subject.
8. Preventive or Occupational Medicine: Processing is necessary for the purposes of preventive or occupational medicine, medical diagnosis, the provision of health or social care, or the management of health or social care systems and services.
9. Public Health: Processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health.
10. Archiving, Research, and Statistics: Processing is necessary for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes, based on Union or Member State law.

Relying on consent for processing sensitive data is particularly challenging. Because consent must be freely given, it is often problematic in an employment context where there is an inherent power imbalance. Furthermore, consent must be specific to each type of processing activity, making it a less flexible legal basis for ongoing or complex data operations. Many organizations find that other grounds, such as substantial public interest or obligations under employment law, provide a more robust and reliable foundation for processing sensitive data.

The obligations for data controllers and processors handling sensitive personal data are significantly heightened. The principle of ‘data protection by design and by default’ is paramount. This means that appropriate technical and organizational measures must be implemented from the very beginning of any project or system design to effectively safeguard this data. Key obligations include:

• Conducting a Data Protection Impact Assessment (DPIA): A DPIA is mandatory when processing is likely to result in a high risk to individuals’ rights and freedoms, which is almost always the case with large-scale processing of sensitive data. The DPIA helps identify and mitigate these risks before processing begins.
• Implementing Enhanced Security Measures: Organizations must ensure a level of security appropriate to the high risk posed by the processing. This includes encryption, pseudonymization, strict access controls, and robust procedures for ensuring the ongoing confidentiality, integrity, and resilience of processing systems.
• Maintaining Detailed Records: Meticulous records of processing activities must be kept, clearly identifying the categories of sensitive data being processed and the specific Article 9 condition being relied upon.
• Appointing a Data Protection Officer (DPO): The appointment of a DPO is mandatory for public authorities and for organizations whose core activities involve large-scale, regular, and systematic monitoring of individuals or large-scale processing of sensitive data.
• Implementing Strict Data Breach Protocols: In the event of a personal data breach, especially one involving sensitive data, the supervisory authority must be notified within 72 hours unless the breach is unlikely to result in a risk to individuals’ rights. If the breach is likely to result in a high risk, the data subjects must also be informed without undue delay.

The consequences for non-compliance with the rules governing sensitive personal data are severe. Data protection authorities have the power to impose administrative fines of up to €20 million or 4% of the company’s total global annual turnover of the preceding financial year, whichever is higher. Beyond the financial penalties, organizations face immense reputational damage and loss of consumer trust, which can be even more devastating in the long term.

In conclusion, sensitive personal data under the GDPR is not merely a subcategory of personal data; it is a classification that triggers the regulation’s most rigorous protections. Organizations must approach this data with the utmost care, ensuring they have a clear and valid legal basis for processing, implementing robust technical and organizational security measures, and maintaining transparency with data subjects. A proactive and comprehensive approach to managing sensitive personal data is the only way to achieve compliance, mitigate risk, and uphold the fundamental right to data privacy.