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You may only process special categories of personal data, such as health or sexual orientation, under strict conditions. The European Court of Justice has confirmed that data from which such special categories can be indirectly derived also fall under that strict regime. Therefore, think carefully about what information you collect.
Special personal data is subject to extra protection
The GDPR includes a prohibition on the processing of special categories of personal data (Article 9 GDPR), such as data concerning health, race, religion, political opinion, or sexual orientation. You may only process such data if a statutory exception applies. The rules are strict because abuse can have serious consequences for people.
Derived data also count
The European Court of Justice has ruled that data that do not in themselves appear 'special', but from which special personal data can be indirectly inferred, also fall under the strict regime. If, for example, you ask for the name of someone's partner, their sexual orientation can be inferred from this — and that makes that information sensitive as well.
Think about your questions and fields
This means that you must critically examine the data you collect, even if it is indirectly sensitive. Do not request information from which special categories of data could be unintentionally derived, unless it is strictly necessary and you meet the strict conditions. Data minimization is the guiding principle here.
What does this mean for you?
Review your forms, questionnaires, and systems: are you indirectly collecting sensitive information? If so, assess whether this is permitted and necessary, and make adjustments where necessary. This will prevent you from unintentionally processing special categories of personal data without a legal basis.
Frequently Asked Questions
What is special personal data?
Data concerning, among other things, health, race, religion, political opinion, and sexual orientation. You may only process these under strict conditions (Article 9 GDPR).
Do derived data fall under this as well?
Yes. According to the Court of Justice, data from which special personal data can be indirectly derived also fall under the strict regime.
What should I do?
Do not collect more than necessary and avoid processing sensitive information indirectly without a legal basis. Review your forms and systems.
Have your data processing reviewed?
Our legal experts conduct a privacy scan and draft your privacy statement . View our privacyteam or schedule a free consultation.
