September 15, 2024

Special Categories of Personal Data Under the GDPR

The General Data Protection Regulation (GDPR) is one of the most comprehensive privacy regulations in the world, setting strict guidelines for how personal data should be collected, processed, and stored. Within the GDPR, certain types of personal data are given extra protection due to their sensitive nature. These are known as “special categories of personal data,” and are subject to more stringent protections. If mishandled, this type of data can pose potential risks to individuals’ rights and freedoms and may result in severe repercussions for individuals and organizations alike.

What Are Special Categories of Personal Data?

Under Article 9 of the GDPR, special category data refers to personal data that reveals:

Racial or ethnic origin,
Political opinions,
Religious or philosophical beliefs,
Trade union membership,
Genetic data,
Biometric data for the purpose of uniquely identifying a natural person,
Health data,
Data concerning a person’s sex life or sexual orientation.

These categories are considered sensitive because their misuse could lead to significant harm or discrimination against individuals. For example, unauthorized disclosure of health data or genetic information could have severe consequences, including social stigma, discrimination, or financial loss.

Legal Grounds for Processing Special Categories of Personal Data

The GDPR generally prohibits the processing of special categories of personal data unless one of the specific conditions outlined in Article 9(2) applies. Some of the key legal grounds for processing this type of data include:

Explicit Consent: The data subject has given explicit consent for the processing of their sensitive data for one or more specified purposes. This consent must be freely given, specific, informed, and unambiguous.
Employment: Processing is allowed when it is necessary to fulfill legal obligations or rights related to employment, social security, or social protection law, such as managing payroll, workplace safety, or employee benefits.
Vital Interests: Processing is allowed when it’s necessary to protect someone’s life or prevent serious harm in situations where the person is unable to give consent.
Non-Profit Organizations: The processing is carried out in the course of legitimate activities by a foundation, association, or other not-for-profit body with a political, philosophical, religious, or trade union aim, provided that the processing relates solely to the members or former members of the body.
Public Interest: Processing is allowed when it is necessary for reasons of substantial public interest, such as protecting public health or safety.
Health and Social Care: Processing is allowed when it’s needed for medical purposes, like preventive care, diagnosing a condition, providing treatment, or managing healthcare services. This also includes assessing an employee’s ability to work.
Archiving, Research, and Statistics: Processing is necessary for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes, in accordance with Article 89(1) of the GDPR.

Processing in instances where the data subject manifestly made the information public and where processing is necessary for the exercise or defense of legal claims may also apply.

Safeguards for Processing Special Categories of Data

Given the sensitive nature of special categories of personal data, organizations should ensure that they implement appropriate safeguards to protect this data. Some of these safeguards include:

Data Minimization: Only collecting and processing the minimum amount of data necessary for the intended purpose.
Data Encryption: Encrypting sensitive data both in transit and at rest to prevent unauthorized access.
Access Controls: Implementing strict access controls to ensure that only authorized personnel can access sensitive data.
Anonymization and Pseudonymization: Where possible, organizations should anonymize or pseudonymize sensitive data to reduce the risk of harm if the data is compromised.
Data Protection Impact Assessments (DPIAs): Conducting DPIAs to assess the potential risks to data subjects and identify measures to mitigate those risks.

Special Category Data in the U.S.

In the United States, privacy laws do not specifically use the term “special category data,” but they do recognize and regulate sensitive personal data with comparable attention. The California Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA), for example, introduced the concept of “sensitive personal information.” This encapsulates data that closely mirrors the GDPR’s special category data and includes certain government identifiers and financial information:

Social security number, driver’s license, state identification card, or passport numbers,
Account log-in, financial account, debit card, or credit card number in combination with any required security or access code, password, or credentials allowing access to an account,
Precise geolocation,
Information concerning a consumer’s health, sex life, or sexual orientation,
Racial or ethnic origin, religious or philosophical beliefs, or union membership,
Contents of a consumer’s mail, email, and text messages (unless the business is the intended recipient),
Genetic data,
Biometric data.

Under the amended CCPA, businesses are required to provide consumers with the right to limit the use and disclosure of their sensitive personal information, similar to the GDPR’s focus on enhanced protection for special category data. Additionally, the CPRA introduced more stringent penalties for violations involving children’s personal information, reflecting the law’s recognition of the heightened risks associated with processing such information.

In addition to the CCPA, several other U.S. state privacy laws are relevant when considering the regulation of sensitive personal information. These include Virginia’s Consumer Data Protection Act, the Colorado Privacy Act, Connecticut’s Data Privacy Act, the Utah Consumer Privacy Act, the Texas Data Privacy and Security Act, Iowa’s Data Privacy Law, Montana’s Consumer Data Privacy Act, Oregon’s Consumer Privacy Act, and Tennessee’s Information Protection Act. Typically, these laws require consent for the collection and processing of sensitive personal information. Maryland’s Online Data Privacy Act, effective on October 1, 2025, might start a new trend however, by limiting the collection, processing, and sharing of consumers’ sensitive personal information to when it is “strictly necessary to provide or maintain a specific product or service requested by the consumer.” It also prohibits the sale of consumers’ personal information for money or other valuable consideration.

As U.S. privacy legislation continues to evolve, it’s essential for businesses to stay informed and ensure compliance with the varying requirements across different states. Each state law, while similar in many respects, has unique nuances that must be carefully considered in any comprehensive data privacy strategy.

Key Considerations for Businesses

Obtaining Explicit Consent: For businesses operating under the GDPR, obtaining explicit consent from individuals for the processing of special category data is often a key requirement. Similarly, under U.S. privacy laws, while explicit consent is not always mandated, providing clear, opt-in mechanisms for the collection of sensitive data is considered a best practice.
Data Minimization and Purpose Limitation: The GDPR emphasizes the principles of data minimization and purpose limitation. Organizations should only collect and process special category or sensitive data that is necessary for a specific purpose, and they must clearly communicate these purposes to data subjects or consumers.
Implementing Robust Security Measures: Given the heightened sensitivity of special category data and sensitive personal information, businesses must implement strong technical and organizational measures to protect this data. This includes encryption, pseudonymization, and regular security audits to mitigate risks.
Cross-Border Data Transfers: Companies that transfer special category or sensitive data across borders must be aware of applicable legal requirements. Under the GDPR, such transfers are only permissible if an adequacy decision is in place for the recipient country or if appropriate safeguards are in place, such as Standard Contractual Clauses or Binding Corporate Rules. Additionally, explicit consent from the data subject or a clear legal basis must be established.
Responding to Data Breaches: The consequences of a data breach involving special category data or sensitive personal information can be severe, including significant fines and reputational damage. It is crucial for businesses to have a robust incident response plan in place to quickly address any breaches and to notify affected individuals and regulatory authorities as required by law.

Takeaways

Navigating the complexities of special category data under GDPR and the sensitive personal information recognized by U.S. privacy laws requires a thorough understanding of the legal landscape and a proactive approach to compliance. By prioritizing the protection of this highly sensitive data, businesses can not only avoid regulatory penalties but also build trust with their customers, which is essential in today’s privacy-conscious environment. VeraSafe can help you understand these requirements and assist you in enhancing your compliance.

Related topics: GDPR, EU Privacy Laws