At a glance

  • Special category data is personal data which the GDPR says is more sensitive, and so needs more protection.
  • In order to lawfully process special category data, you must identify both a lawful basis under Article 6 and a separate condition for processing special category data under Article 9. These do not have to be linked.
  • There are ten conditions for processing special category data in the GDPR itself, but the Data Protection Act 2018 introduces additional conditions and safeguards.
  • You must determine your condition for processing special category data before you begin this processing under the GDPR, and you should document it.

In brief

What's new?

Special category data is broadly similar to the concept of sensitive personal data under the 1998 Act. The requirement to identify a specific condition for processing this type of data is also very similar.

One change is that the GDPR includes genetic data and some biometric data in the definition. Another is that it does not include personal data relating to criminal offences and convictions, as there are separate and specific safeguards for this type of data in Article 10.

The conditions for processing special category data under the GDPR in the UK are broadly similar to the Schedule 3 conditions under the 1998 Act for the processing of sensitive personal data. More detailed guidance on the new special category conditions in the Data Protection Act 2018 - and how they differ from existing Schedule 3 conditions - will follow in due course.

What’s different about special category data?

You must still have a lawful basis for your processing under Article 6, in exactly the same way as for any other personal data. The difference is that you will also need to satisfy a specific condition under Article 9.

This is because special category data is more sensitive, and so needs more protection. For example, information about an individual’s:

  • race;
  • ethnic origin;
  • politics;
  • religion;
  • trade union membership;
  • genetics;
  • biometrics (where used for ID purposes);
  • health;
  • sex life; or
  • sexual orientation.

In particular, this type of data could create more significant risks to a person’s fundamental rights and freedoms. For example, by putting them at risk of unlawful discrimination.

Your choice of lawful basis under Article 6 does not dictate which special category condition you must apply, and vice versa. For example, if you use consent as your lawful basis, you are not restricted to using explicit consent for special category processing under Article 9. You should choose whichever special category condition is the most appropriate in the circumstances – although in many cases there may well be an obvious link between the two. For example, if your lawful basis is vital interests, it is highly likely that the Article 9 condition for vital interests will also be appropriate.

What are the conditions for processing special category data?

The conditions are listed in Article 9(2) of the GDPR:

(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.

You need to read these alongside the Data Protection Act 2018, which adds more specific conditions and safeguards:

  • Schedule 1 Part 1 contains specific conditions for the various employment, health and research purposes under Articles 9(2)(b), (h), (i) and (j).
  • Schedule 1 Part 2 contains specific ‘substantial public interest’ conditions for Article 9(2)(g).
  • In some cases you must also have an ‘appropriate policy document’ in place to rely on these conditions.

Now that the detail of these provisions has been finalised, we are working on more detailed guidance in this area.