1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.
Article 9 GDPR - Processing of special categories of personal data
2. Paragraph 1 shall not apply if one of the following applies:
(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;
(b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorised by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject;
(c) 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;
(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;
(e) processing relates to personal data which are manifestly made public by the data subject;
(f) processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;
(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;
(h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;
(i) processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;
(j) processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.
3. Personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies.
4. Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health.
Relevant Recitals
- Recital 46 Vital Interests of the Data Subject
- Recital 51 Protecting Sensitive Personal Data
- Recital 52 Exceptions to the Prohibition on Processing Special Categories of Personal Data
- Recital 53 Processing of Sensitive Data in Health and Social Sector
- Recital 54 Processing of Sensitive Data in Public Health Sector
- Recital 55 Public Interest in Processing by Official Authorities for Objectives of Recognised Religious Communities
- Recital 56 Processing Personal Data on People's Political Opinions by Parties
Frequently Asked Questions
Short answers to common questions about this provision. They are general information and not legal advice.
Paragraph 1 prohibits the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, together with genetic data, biometric data processed for the purpose of uniquely identifying a natural person, data concerning health and data concerning a person's sex life or sexual orientation. The prohibition can be lifted only where one of the conditions listed in paragraph 2 applies, and Recital 51 makes clear that the general rules of the Regulation, including the conditions for lawful processing, continue to apply alongside these specific requirements.
Yes, in principle. Point (a) of Article 9(2) requires explicit consent to the processing for one or more specified purposes, a stricter formulation than the general definition of consent in Article 4(11), which must still be met together with the conditions of Article 7. Union or Member State law may, however, provide that the prohibition cannot be lifted by the data subject at all, in which case even explicit consent is unavailable.
Point (e) of Article 9(2) lifts the prohibition only where the data have been manifestly made public by the data subject himself or herself. Publication by a third party does not engage the exception, and the word "manifestly" points to a deliberate and unambiguous act of the data subject rather than mere accessibility of the data.
Point (h) of Article 9(2) permits processing necessary for preventive or occupational medicine, assessment of an employee's working capacity, medical diagnosis, the provision of health or social care or treatment, or the management of health or social care systems, on the basis of Union or Member State law or a contract with a health professional. Paragraph 3 adds that the data must be processed by or under the responsibility of a professional bound by professional secrecy, or by another person subject to an equivalent obligation of secrecy under Union or Member State law or rules of national competent bodies.
Yes, but only within the limits of paragraph 4, which allows Member States to maintain or introduce further conditions, including limitations, solely with regard to genetic data, biometric data and data concerning health. For the other categories in paragraph 1 the exceptions in paragraph 2 are exhaustive at Union level, although several of them themselves depend on a basis in Union or Member State law.