What Does it Mean for a Data Subject to Make their Personal Data “Manifestly Public”? An Analysis of GDPR Article 9(2)(e)

34 Pages Posted: 28 Sep 2020

See all articles by Edward Dove

Edward Dove

University of Edinburgh - School of Law

Jiahong Chen

University of Sheffield, School of Law; University of Nottingham

Date Written: September 25, 2020

Abstract

This article investigates an under-discussed and potentially significant provision in the EU General Data Protection Regulation, namely Article 9(2)(e), which permits processing of special category personal data if the “processing relates to personal data which are manifestly made public by the data subject”. We specifically consider the application of this provision in the context of genetic data and open data sharing (i.e. data that can be freely used, re-used, and redistributed by anyone), illustrating this by way of several cases of initiatives that seek to share genetic data. We query whether by uploading one’s own genetic data onto the internet, a person has made their data “manifestly public” within the meaning of the GDPR. Our response to this query is that in general, the answer should be no, but it remains possible. We argue that Article 9(2)(e) must be construed narrowly; outside of clearly defined contexts, it would be legally inappropriate to invoke and rely upon this manifestly public self-disclosure exception in data protection law. Our narrow interpretation of the provision aligns with the limited guidance made available from data protection authorities. As part of this argument, we propose a legal test that must be satisfied before Article 9(2)(e) may be lawfully invoked, grounded in the intent of the data subject.

Keywords: Article 9(2)(e), EU data protection, General Data Protection Regulation, genetic data open data sharing, special category personal data

Suggested Citation

Dove, Edward and Chen, Jiahong, What Does it Mean for a Data Subject to Make their Personal Data “Manifestly Public”? An Analysis of GDPR Article 9(2)(e) (September 25, 2020). Edinburgh School of Law Research Paper 2020/18, Available at SSRN: https://ssrn.com/abstract=3699572 or http://dx.doi.org/10.2139/ssrn.3699572

Edward Dove (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Jiahong Chen

University of Sheffield, School of Law ( email )

Bartolomé House
Winter St
Sheffield, S3 7ND
United Kingdom

University of Nottingham ( email )

United Kingdom

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