12. april 2018
KL's høringssvar vedr. Artikel 29-gruppens Guidelines om samtykke
Artikel 29-gruppen har den 28. november 2017 vedtaget en vejledning (guideline) om databeskyttelsesforordningens regler om samtykke. Vejledningen er p.t. under opdatering efter afsluttet offentlig høring.
KL har den 22. januar 2018 afgivet følgende høringssvar til Artikel 29-gruppen:
Comments on Guidelines on Consent under Regulation 2016/679
Local Government Denmark (LGDK) welcomes the opportunity to comment on "Guidelines on Consent under Regulation 2016/679" from The Article 29 Data Protection Working Party.
LGDK has noted that section 3.1.1. refers to the employment context as an example of where imbalance of power occurs (page 8). In this section WP29 states that it is deemed problematic for employers to process personal data of current or future employees on the basis of consent as it is unlikely to be freely given.
LGDK finds that the conclusion - that it is deemed problematic for employers to process personal data of employees on the basis of consent - raises a lot of questions, perhaps more so for public employers than for private employers, since public employers cannot rely on GDPR Article 6 (1f) (legitimate interest) as an alternative legal basis for processing such data. This seems to cause problems especially with regards to (potential) future employees.
If processing personal data of (potential) future employees is not possible on the basis of consent, LGDK kindly asks that WP29 states on what other legal ground public employers can process personal data regarding individuals applying for a job, e.g. applications, curriculum vitaes, work references and perhaps criminal records. Processing such data in a recruitment process is necessary in order to asses the merits and suitability of the candidates.
LGDK also finds that it should be mentioned in section 3.1.1. that GDPR allow that "Member State law or collective agreements, including ‘works agreements’, may provide for specific rules on the processing of employees' personal data in the employment context, in particular for the conditions under which personal data in the employment context may be processed on the basis of the consent of the employee …" (see recital 155). In other words it should be mentioned in section 3.1.1. that it is possible for Member States to have laws or colletive agreements that allow employers to process personal data of employees on the basis of consent.