COVID AND THE DATA PRIVACY CONUNDRUM....

I want to get out of the house, I want to go to a restaurant and eat until I can barely move, I want to torture myself watching Stoke City be 1-0 up with ten minutes to go only to somehow lose 1-2. Hell, I even want to go the gym. I know my obligations and responsibilities and I know and agree with the importance of maintaining the lock down and enforcing social distancing but it doesn’t stop me wanting to see a return to a social environment that in hindsight I took for granted.

China and South Korea are starting to reopen their cities and return to whatever the new “normal” looks like but they are doing this from a very different legal and social infrastructure. China, in particular, has always adopted a much stricter control over its citizens including the way it monitors and uses personal data it collects on them. Following the decision to relax the lock down, China has implemented a number of schemes ranging from a requirement to register when you use the subway to QR codes which flag an individuals “health” status to police so that their movements can be tracked. The Chinese and South Korean governments firmly believe that such surveillance is important if we are to keep the “R0” value below one whereas many fear that the pandemic is being used as a smoke screen to increase surveillance that will survive long after the pandemic is under control.

So the question arises on how far we prepared to go in the UK?

Firstly, the data privacy debate in the UK is never made easy as the argument is always taken from the extremes. On one side, we will have those arguing that without the use of strict surveillance technology we will never be able to get back to any form of normality and anything less than complete monitoring will endanger the lives of millions but on the other we will have people arguing that the use of monitoring technology to track our movements and social interaction is the thin end of a dystopian wedge.

In reality, like many things, the truth is somewhere in the middle. If we want to move back to some form of normality then we may need to accept a degree of intrusion on our privacy rights. Equally it is important that whatever technical and restrictive procedures we adopt, we need to ensure that the implementation is backed up by legislation that keeps these procedures firmly under review and reduced and removed at the earliest opportunity.

There is a common mis-perception that the GDPR means that in order to implement any kind of social restricting and monitoring you always require an individuals consent. This is not the case and whilst consent may be preferable, it carries with it the inevitable risk that it will be ineffective as a means of tracking the spread of COVID unless sufficient coverage is obtained. There are various grounds under the legislation that already permit the processing of a persons data including where it is necessary for reasons of substantial public interest and so the legislative framework is already available for the Government to implement a plan that will help monitor the spread of the virus as we are released from the lock down. Equally, Andrea Jelinek (Chair of the European Data Protection Board (“EDPB”)) has made it clear in the recently released statements from the EDPB that “even in these exceptional times, the data controller must ensure the protection of the personal data of the data subject”.

Herein lies the dilemma, legislation is rarely written to accommodate for every scenario and so it has to have sufficient flexibility to adapt and develop to changing circumstance. Whilst there are significant flaws in the GDPR legislation, the flexibility is there and it may be that we all have to accept a certain loss of privacy in return for getting back some of the freedoms that the lockdown has taken from us. However, this does need to be balanced and monitored and for that we need to place some faith in the likes of the EDPB and the ICO to keep things honest and to pursue action against any attempt to exploit privacy data above and beyond dealing with the crisis we are currently facing.

Next up: Is it the end of the hourly rate?.....