Protecting sensitive data
Principles of data protection
Data protection laws are often cited as prohibiting
the collection of ethnic data. However, data
protection laws can distinguish between the
collection of individually identifiable data and
that of anonymous data, permitting the latter.
European Union law, for example, applies to personal data and exempts anonymous data.48 The
Council of Europe notes that statistical results are
not personal data because they are not linked to
an identifiable person and highlights the need
for balance between the need for research and
the protection of privacy of individuals.49
In an attempt to balance the need for data on
ethnicity with considerations of personal privacy, the European Commission against Racism
and Intolerance (ECRI) has recommended that
ethnic data be collected in ways that ensure
confidentiality, informed consent, and voluntary
self-identification. Furthermore, ECRI has urged
against publication of personal data in such a
way as to divulge individual identity. Taking this
line of thinking a step further, one data protection expert has suggested that abuse of personal
data be prevented through a method that would
“count the members of a community without
numbering them, i.e., without recording them
individually in files, registries or computer databases” (Székely 2001, p. 279).
In addition to containing a general prohibition
on the processing of sensitive data –including
but not necessarily limited to personal data on
racial or ethic origin, political opinions, religious
or philosophical beliefs, trade union membership
and health or sex life – the EU Data Protection
Directive enumerates conditions under which
the processing of sensitive data can be legitimated. For example, Article 8 (2) states sensitive
data may be processed on the basis of the data
subject’s consent, unless the laws of the member
States otherwise provide.
Further exemptions to the prohibition on processing sensitive data under the Data Protection
Directive may be laid down by national laws or
by decision of national supervisory authority,
provided that suitable safeguards are provided
(i.e. necessary technical and organizational
measures are taken in order to maintain data
security). The reason for this class of exemptions
is to facilitate scientific research and government
statistics, enabling processing and storage of
sensitive data in central population registers, tax
registers, census registers and the like.
Article 6 of the Data Protection Directive sets out
five qualitative principles that must be respected
when personal data is processed. These principles require that personal data must be:
Processed fairly and lawfully;
Collected for specified, explicit and legitimate
purposes;
Adequate, relevant and non-excessive;
Accurate, and where necessary kept up to date;
and
Kept in a form that permits the identification
of data subjects for no longer than necessary.
By virtue of the above principles, data collection
operations could wherever possible conduct:
Secondary rather than primary data collection;
Anonymous rather than non-anonymous
surveys;
Sampling rather than full-scale surveys;
Voluntary rather than compulsory surveys.
EU directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, 95/46/EC, 24 October.
48
Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (1981) and Recommendation No. R(97) 18 of the
Committee of Ministers Concerning the Protection of Personal Data Collected and Processed for Statistical Purposes (1997).
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