With its judgment of August 1, 2022 (Case C-184/20), the European Court of Justice (ECJ) has now ruled on the scope of application of Article 9 GDPR. The Court was ask the practical question of whether data from which a person’s sexual orientation can be inferr by means of “combination or inference” also falls under the special categories of personal data under Article of Art. 9 GDPR.
A Lithuanian law as the starting point for the ECJ decision of Art. 9 GDPR
The ECJ should, among other things, address whether Article 9 GDPR should be interpret as meaning that the publication of personal data which is likely to indirectly reveal a natural person’s political opinions, trade union membership or sexual orientation constitutes processing of special categories of personal data within the meaning of the provision. In the present case, switzerland business fax list the person required to provide a declaration was obliged to provide the full name of their spouse, partner or life partner . Although the name in itself does not constitute a date under Article 9, this information can usually be used to infer the partner’s gender and thus the sexual orientation of the person required to provide a declaration . Whether such an indirect inference through “logical combination or deduction” is sufficient to open up the scope of application of Article was the subject of the ECJ’s examination.
ECJ interprets the scope of Art. broadly
Furthermore, a broad interpretation of Article 9 GDPR is also necessary in view of the objective of the GDPR, which is to ensure a high level of protection for natural persons with regard to the processing of personal data. A narrow interpretation of the provision would, the evolution of content marketing and seo moreover. Run counter to the purpose of Article 9 GDPR , which is to guarantee increased protection against data processing which, due to the particular sensitivity of the data in question, may constitute a particularly serious interference with the rights and freedoms of the data subjects.
Will the application of Art.become more widespread as a result of the ruling? of Art 9 GDPR
At first glance, these abstract statements by the ECJ lead to a significant expansion of the applications of Art. 9 GDPR . An indirect inference to special categories of personal data is conceivable in many data processing operations. For example, providing a person’s name or place of birth can be an indication of their ethnic origin. Photos and video recordings of people wearing glasses. Using wheelchairs, email data or with walking difficulties allow conclusions to be drawn about their state of health. Therefore, the application of Art. would also be conceivable in principle when ordering medication or providing information about participation in a political event.
Consideration of the processing context when applying Art. 9 GDPR
9 para. 30; Weichert, in: Kühling/Buchner, Art. 9 para. 22 et seq.). Thus, in principle, not every indirect statement relating to Art. 9 data may claim the special protection of the provision. The purpose of the standard is precisely to protect the data subjects (exclusively) from particularly risky data processing.