The current health crisis highlights a point of law regarding the use of personal health data. Indeed, the French government, like many governments all around the world, would like to retrieve data from our smartphones in order to monitor the spread of the pandemic and enforce the containment rules.
As much as in Spain an application has been implemented very quickly, in France no decision has been taken, as the government is facing many legal controversies for invasion of our privacy.
We asked two lawyers, Mr. Michael Amado from Amado Avocats in Paris and Dr. Joan Francesc Ponts Clemente from Coronas Avocats in Barcelona to give us their point of view about this subject.
For Dr. Joan Francesc Ponts Clemente in Spain the use of anonymous ‘big data’ is quite possible. On the other hand, the use of the mobile phone as an instrument of individual vigilance requires the authorization of a Judge. The Article 116.2 of the Spanish Constitution allows the right to reduce the circulation or containment for example, but cannot, in any case, allow the authorities to impose the collection of data in smartphones.
Remember that the COVID 19 application is downloaded voluntarily and therefore does not fall within the scope of the law.
A state of emergency is an indeterminate legal concept that must be developed according to the needs. As much as it may reduce the exercise of civil rights, it must respect the inviolability of privacy.
He concludes by saying that “it is true that the general acceptance of exceptional measures by Spanish citizens could open the door to an abuse of the Law in certain matters, such as the control of patients through mobile phones“.
According to Mr. Michael Amado at the European level, the processing of personal data is considered lawful when it is necessary to protect an essential interest in the life of the data subject or in the life of another natural person and if the data subject has consented to the processing of his or her personal data for one or more specific purposes.
At the French level, the CNIL specifies that health data may be collected by the health authorities, who are qualified to take the appropriate measures. The evaluation and collection of information relating to coronavirus symptoms and information on the recent movements of certain individuals is the responsibility of these public authorities. » Mr. Michael Amado concludes by saying that “it would be legal for the French health authorities to collect data from our smartphones in the context of the potentially lethal epidemic that we are experiencing in France, provided that three points are respected: conduct an impact study, request consultation with the CNIL and that the data collection is carried out by the “health authorities“”.
Today, no one can deny the state of health emergency caused by Covid-19, which would legitimize the collection of personal data for public health reasons, but what will happen after the crisis, when lawyers and politicians debate this subject endlessly, or when some governments continue to use such applications under the guise of protecting their citizens?
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