A leading data protection solicitor at London legal firm iLaw believes that the exceptional circumstances surrounding the COVID-19 pandemic mean that the physical health and safety of the population should weigh heavily in the balance with the application of data protection rules in tracking the virus.
Since the launch of a dedicated COVID-19 tracking app was announced by the Government there has been an ongoing debate regarding data protection and privacy laws, and there have been a variety of objections that the app would infringe those laws.
Justin Ellis, a Director at iLaw and an expert in data protection, said it is clear that there are many bases on which an app could be found to meet the conditions necessary for it to comply with data protection law and he hopes that the authorities, developers and users alike will take a pragmatic approach.
“Now is not the time for delay. A tracking app could be key in helping the Government to ease the lockdown and monitor the spread of the virus ensuring people remain safe,” said Justin.
“Data protection and privacy lawyers, such as myself, sometimes get carried away with the detail of the law, but these are unprecedented times and we mustn’t allow the legislation to get in the way of the immediate needs of our society unless absolutely necessary.”
Justin explained that one of the main issues with a tracking app is that it will be required to process ‘special categories’ of personal data, in particular health information.
This could raise important questions regarding consent, but Justin believes there are at least two other grounds on which such information could be processed lawfully – where processing is necessary to protect individuals’ lives and where processing is necessary for reasons of substantial public interest.
Another significant issue that the app may face is its ability to track people’s location. Justin said that in reality, as long as the system incorporated safeguards to ensure the security of location information, then it should be compliant with current data protection laws. He also pointed out that many apps on people’s phones already process this kind of information with only the most basic of consents.
He said: “I think we are at a point now where these questions should be quickly addressed in the most practical ways. The rules exist so that in circumstances such as those we face at the moment, we can find a way for such apps to be that achieves the best outcome for the nation’s public health while we safeguard the security of people’s personal information.”
Looking at the approach to data protection and COVID-19 tracking software, Justin concluded: “Fundamentally, if the country wants to come out of lockdown, its people are going to have to exercise some degree of trust.
“Unless the app is made compulsory, everyone will have the choice of whether to use it or not. Hopefully, the majority of the population is sensible enough to realise that it’s for the general good and therefore consent to the processing of their data.
“To build trust it is important that the Government is clear on what data is being processed and how it will be used. This should override many of the concerns that people have.”