BUSINESS IMPUNITY VS COVID-19 IMMUNITY PASSPORTS

“But they’re the owner and have a right to refuse anyone they want”. This will be part of the counter argument to the ever growing debate on business impunity and COVID-19 immunity passports/e-vaccination status in 2021.

People in Britain recently breathed a sigh of relief when Nadhim Zahawi MP said -

Mandating vaccinations is discriminatory & completely wrong. I, like @SteveBakerHW, urge businesses listening to this today not to even think about this. We’ve absolutely no plans for vaccine passports”.

{UPDATE] Sadly, we were right to be cautious. It was revealed on December 18th the British Government awarded a contract to a supplier for a ‘COVID-19 Certification/Passport MVP’. We will further update on this as it evolves.

Are immunity passports and e-vaccination status the same? Technically, yes. E-vaccination confirms you’ve received your two COVID-19 vaccines. Immunity passports also confirm you’ve received vaccination and are considered ‘immune’ to SARS-CoV-2. What we don’t know yet is whether or not the vaccines are effective and this will greatly impact the immunity passport debate.

Dr. Ana Beduschi is an Associate Professor of Law at the University of Exeter, United Kingdom. Her work in highlighting the legalities of immunity passports has become more prominent throughout this year. Please listen to Ms. Beduschi on a recent BBC podcast. Also the work of Elizabeth M. Renieris, Dr. Sherri Bucher, and Christian Smith in our blog. It is our hope that people receive a better understanding going forward about business and the idea of COVID-19 immunity passports.

DATA PRIVACY CONSIDERATIONS

(NOTE: The following article is republished material by Directions Cyber Digital Europe on behalf of Ana Beduschi. You can read the full article here. We will begin from Data Privacy Considerations)

Within the European human rights system, Article 8 of the European Convention on Human Rights (ECHR) guarantees respect for one’s private life. That includes the protection of personal information concerning one’s health and attributes such as DNA samples and biometric data (see, in particular, the decisions of the European Court of Human Rights on S. and Marper v UK , L. L. v France, L.H. v Latvia and Gaughran v the UK).

In the EU context, Article 8 of the Charter of Fundamental Rights of the European Union (CFREU) expressly recognises the right to data protection. Article 3 of the General Data Protection Regulation (GDPR) provides that any processing or controlling of EU data subjects’ personal information must comply with the rules it sets forth, even if that processing takes place outside of the EU.

However, the right to respect for private life is a qualified right, meaning that state authorities may interfere with it under specific circumstances. Still, any restrictions imposed by public authorities must be taken in view of safeguarding a legitimate interest provided for by the ECHR and must satisfy the tests of legality, necessity and proportionality. Given the current situation, states could certainly invoke the interests of “the protection of health” or of their country’s “economic well-being” listed in Article 8 to justify the deployment of digital health certificates.

However, according to the principle of legality, domestic laws providing the legal basis for the adoption of such technologies must be adequately accessible and foreseeable and indicate with sufficient clarity the scope of discretion they confer to public authorities (S. and Marper v UK at para 95). Besides, health data, such as the results of COVID-19 immunity tests, enjoy a reinforced level of protection under Article 9 of the GDPR. Even if the processing of health data is necessary for public health purposes, domestic laws must provide adequate and specific measures to safeguard individuals’ rights and freedoms (Article 9–2 (i.) GDPR)

Moreover, the necessity test demands states to demonstrate that there is a pressing social need at stake. In other words, they must justify as necessary not only the use of technology to measure population immunity, but also the use of such technology to categorise individuals based on their health status. Even if we assume that the unprecedented nature of the current pandemic could allow states to clear this high hurdle, they would still need to show that the measures taken are proportionate to their aims and that they are the least restrictive viable solution. This hurdle may be more difficult to clear, as such measures would dramatically restrict the rights of a large segment of the population.

Continue to read this article here

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Originally published at https://www.stopcommonpass.org on December 17, 2020.

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