Digital Green Certificates: the EDPB and EDPS release a joint opinion

Digital Green Certificates

Digital Green Certificates have been a topic of debate lately, and the EDPB & EDPS have released a joint opinion on this, regarding data protection and privacy.

Digital Green Certificates, which some refer to as “vaccine passports” are, contrary to popular belief, not specific to vaccines. In actuality, the digital green certificates or passes, as they would preferably be called, are proposed to be a QR code with information on a person’s status with regard to the COVID-19 virus. The specifics of the information may be pertaining to the vaccine and have details on which vaccine was taken and when it was administered, or it may contain information on a negative COVID-19 test and the date on which the last test was taken. This scannable code may also contain information on antibodies present in a person’s system, if they have developed antibodies from being infected with and recovering from this virus. Vaccines are not mandatory at this time, and the digital green certificates proposed by the European Commission are intended to make it easier to identify someone’s current status with regard to COVID-19, whether vaccinated or not, making travel throughout the EU more seamless, for anyone traveling during this global pandemic. 

The EDPB and EDPS released this joint statement specific to the aspects of the Proposal pertaining to personal data protection. 

The Commission first published the proposal for a Regulation of the European Parliament and of the Council the issuance, verification and acceptance of certificates of vaccination, testing and recovery to third-country nationals who are legally staying or residing in any of the EU Member States during the COVID-19 pandemic on March 17th. The EDPB & EDPS note that the aim of this proposal is to facilitate the exercise of the right to free movement within the EU during the COVID-19 pandemic. Due to the particular importance of these proposals and their impact on individual rights and freedoms regarding the processing of personal data, the EDPB and EDPS released their joint opinion specific to the aspects of the proposal relating to personal data protection. The organisations highlight that it is essential that the proposal is consistent and does not, in any way conflict with the application of the GDPR. 

Digital Green Certificates should be approached from a holistic and ethical standpoint, as asserted by the EDPB and EDPS in their joint opinion. 

The EDPB and EDPS suggest that the Commission take a holistic and ethical approach to the proposal in an effort to encompass all the issues related to privacy and data protection, and fundamental rights in general. They note that data protection is not an obstacle to fighting the current pandemic and that compliance with data protection law will only aid by helping citizens trust the frameworks provided in those efforts. The EDPB and EDPS advise that any measure adopted by Member States or EU institutions must be guided by the general principles of effectiveness, necessity and proportionality. In addition, they note that the World Health Organisation (WHO) in its ‘ interim position paper: considerations regarding proof of COVID-19 vaccination for international travelers’ stated that “(…) national authorities and conveyance operators should not introduce requirements of proof of COVID-19 vaccination for international travel as a condition for departure or entry, given that there are still critical unknowns regarding the efficacy of vaccination in reducing transmission.” 

The EDPB and EDPS, in their joint opinion, state that these green certificates must not lead to the creation of any central database of personal data at the EU level, under the pretext of the Digital Green Certificate framework. In addition, they made specific mention that these certificates should be made available in both digital and paper based formats, to ensure the inclusion of all citizens, regardless of their level of engagement with technology. The organisations also call for clarification on the proposal’s stance on the manner in which these certificates will be issued, whether automatically, or upon request of the data subject. Recital 14 and Articles 5(1) and 6(1) of the Proposal currently state “(…) Member States should issue the certificates making up the Digital Green Certificate automatically or upon request (…)”

The EDPB and EDPS are glad to note the considerations to the rights and freedoms of individuals, as well as compliance with data protection regulation, included in the Proposal. 

The organisations are pleased to note that the Proposal explicitly states that compliance with European data protection regulation is key to the cross border acceptance of vaccination, test and recovery certificates. Recital 38 of the proposal states that “[i]n line with the principle of minimisation of personal data, the certificates should only contain the personal data necessary for the purpose of facilitating the exercise of the right to free movement within the union during the COVID-19 pandemic”. The EDPB and EDPS recommend the inclusion of reference to the GDPR in the main text of the proposal, as it is the legal basis for the processing of personal data, for the issuance and verification of interoperable certificates, as acknowledged in Recital 37. 

Article 3(3) of the Proposal states that citizens can obtain these certificates free of charge,and may renew these certificates to bring the information up to date, or replace as necessary. While the EDPB and EDPS commend this, the organisations also recommend clarifying that the original certificate, as well as modifications shall be issued upon request of the data subject. This is very important for maintaining accessibility for all persons. 

The EDPB and EDPS call for attention to data minimisation, as well as clarification on the validity period of the data processed. 

There are naturally certain categories and data fields of personal data which would need to be processed within the framework of the Digital Green Certificates. As a result, the EDPD and EDPS consider that the justification for the need for personal data fields needs to be clearly defined in the Proposal. In addition, the organizations ask that further explanation be provided as to whether all of the categories of personal data provided for are necessary for inclusion in the QR code for both digital and paper certificates. They note that data minimisation can be achieved using an approach of differently comprehensive data sets or QR codes. In addition, the organizations note the lack of specificity with regard to an expiry date or validity period for each certificate in the draft Proposal. It is also important to note that the EDPB and EDPS clearly state that given the scope of the draft of the proposal, and the context of the global pandemic, the statement of the disease or agent from which the individual has recovered should only be limited to COVID-19 and its variants. 

The EDPB & EDPS iterate the importance of adequate technical and organizational privacy and security measures in the context of the proposal.

With regard to the Digital Green Certificate, the organizations suggest that privacy and security measures should be specially structured to ensure compliance by the controllers and processors of personal data required by this framework.  The opinion states that controllers and processors should take adequate technical and organizational measures to ensure a level of security that is appropriate to the level of risk of the processing of this personal data in line with Article 32 of the GDPR. These measures should include the establishment of processes for regular assessment of the effectiveness of the privacy and security measures which are adopted. 

While the EDPB and EDPS are pleased to note the clarification, within the Proposal, of the roles of data controllers and processors, the organisations suggest that the Proposal specify, through a comprehensive list, all entities foreseen to be acting as controllers or processors of the data in EU Member States, taking into account the use of these certificates in multiple member states by persons traveling throughout the EU. They also suggest that the Proposal should provide clarification on the role of the Commission with regard to data protection law in the context of the framework, guaranteeing interoperability between the certificates. In addition, the organisations call for attention to compliance with Article 5(1)(e) of the GDPR, with regard to the storage of personal data, as well as clarification on the storage period that Member States should not exceed, beyond the pandemic. Furthermore, the EDPB and the EDPS recommend that the Commission explicitly clarifies whether, and when any international transfers of personal data are expected, as well as safeguards within the legislation to ensure that third countries will only process the personal data for the specific purposes that this data is exchanged, according to the framework.

Does your company have all of the mandated safeguards in place to ensure compliance with the ePrivacy, GDPR and Data Protection Act 2018 in handling customer data? Aphaia provides ePrivacy, GDPR and Data Protection Act 2018 consultancy services, including data protection impact assessments, EU AI Ethics Assessments and Data Protection Officer outsourcing. We can help your company get on track towards full compliance.

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    Shirin Tobie-Paul

    Thank you Zandilli Lucien. Another packed and informative article!

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