On March 12, 2020, the UK Supervisory Authority (“ICO”) issued a statement on data protection and coronavirus (“COVID-19”).  The statement makes clear that the ICO will take a “reasonable and pragmatic” approach regarding compliance with the GDPR in light of the current health emergency.

Similar to the Irish Supervisory Authority (see our previous blog here), the ICO stressed that data protection law does not stand in the way of addressing the challenges posed by the COVID-19 pandemic.  It also emphasized that, in light of the severity of the present crisis, the ICO will adopt a pragmatic approach regarding enforcement, and will not “penalise organisations that … need to prioritise other areas or adapt their usual approach during this extraordinary period”.  This is reflected in the ICO’s views on the following matters:

Data subjects’ requests: The ICO stated that it will not take regulatory action against organizations that will not manage to respond to information rights requests within the statutory deadlines.  In this regard, the ICO will inform data subjects through its communications channels that they may experience understandable delays when making information rights requests during the pandemic.

Security of personal data and homeworking: The ICO made clear that data protection law does not prevent homeworking, and it advised that companies consider the same kinds of security measures for homeworking that they would use in normal circumstances.

Collection of health data about employees or visitors: According to the ICO, it is reasonable to ask people whether they have visited a particular country, or are experiencing COVID-19 symptoms.  This is a frequently raised concern for many organizations intending to protect the health and safety of their staff.  However, companies should not collect more data than they need, and ensure that any information they collect is treated with appropriate safeguards.

 Confidentiality and sharing information within a company: The ICO took the view that an employer may inform its staff that there has been a case, or suspected case, of COVID-19 in its organization in order to discharge a duty of care and protect their health and safety, but it advised that it is “probably” not necessary to name the affected individual(s), suggesting that organizations will need to consider whether actually sharing a person’s name is strictly required to protect the well-being of others.

Sharing employees’ health information with public authorities: The ICO held that, while it is unlikely that companies will be asked to share information about specific individuals with public authorities, data protection law would not prevent that.

As we have previously reported (see our blogs here, here, here, here, and here), numerous other EU supervisory authorities have published similar guidance, but have sometimes taken an approach that is stricter than the ICO’s.  This might call for the intervention of the European Data Protection Board (“EDPB”) at some point.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.