Drelon v France: Collection and retention of personal data concerning presumed sexual orientation was a violation of Article 8

20 September 2022 by

On 8 September 2022, the European Court of Human Rights (ECtHR) handed down its decision in Drelon v France (application nos. 3153/16 and 27758/18).[1] The Court unanimously found a violation of Article 8 of the European Convention on Human Rights in relation to the collection by the French Blood Donation Service, the Établissement Français du Sang (EFS), of personal data relating to a potential blood donor’s presumed sexual orientation and the excessive length of time the data was kept in a public institution.

Background

In 2004, the applicant had sought to donate blood to the EFS but refused to answer questions relating to his sexual orientation during a medical interview. During the interview, his personal data was entered into a computer. The entry showed that the relevant contraindication to donating blood, code FR08, used at the time for men who had sexual intercourse with other men, had been applied to him. The applicant’s request to give blood was rejected. In 2006, the applicant made another request but was informed by the EFS that he was listed under code FR08 and was excluded from giving blood.

Subsequently, the applicant lodged a criminal complaint for discrimination, which was refused both by the investigating judge and on appeal. The Court of Cassation dismissed the applicant’s further appeal on points of law. In 2016, the applicant made a further request to donate blood and was once again rejected. He then challenged the list of contraindications to donation on two occasions, for the reason that it excluded men who had had sexual intercourse with other men, claims which were dismissed.

The applicant argued in the ECtHR that the collection and retention by the EFS of personal data relating to his presumed sexual orientation, together with the rejection of his criminal complaint for discrimination, breached Article 8 of the Convention. He also claimed that the decisions refusing his requests to donate blood in 2004, 2006 and 2016, together with the dismissal by the Conseil d’État of his judicial review application challenging a ministerial order amending the selection criteria for blood donors, breached Article 8 in conjunction with Article 14.

The Court’s Decision

Article 8

Given that the primary purpose of Article 8 is to protect individuals against arbitrary interference by public authorities and as the EFS is a public body, the Court analysed the complaint from the perspective of negative obligations ([85]).

  1. Existence of an interference

As a preliminary point, the Court considered that the data collected and recorded by the EFS contained express indications of the applicant’s sex life and alleged sexual orientation. The fact that the contraindication was kept by reference to a code and not an explicit description of sexual behaviour was not decisive. Moreover, it was intended that the data which was entered in 2004 should be retained until 2278. For these reasons, the Court determined that there had been an interference with the applicant’s right to respect for private life ([86]).

  • Legal basis for the interference

The Court noted that domestic law made an exception to the prohibition on the collection and processing of data relating to the health or sex life of individuals, where it was necessary for the “management of health services” ([87]).

As to whether this legal basis was sufficiently foreseeable and accessible, and provided adequate protection against arbitrariness,[2] the Court determined that this must be assessed in its legal context. Article 18 of Directive 2002/98/EC required the recording of donor evaluation and examination procedures. Domestic law also provided for the keeping of a “computerised donor file” including “any temporary or permanent contraindications to donation, indicated in code”. The Court therefore considered that the legal framework, taken as a whole, defined with sufficient precision the scope and terms of the exercise of the domestic authorities’ discretion, and so allowed the applicant to regulate his conduct ([88]).

  • Pursuit of a legitimate aim

The Court found that the interference in question pursued the legitimate aim of protecting health (Article 8 § 2). The Court noted that a large number of persons had been infected with HIV or hepatic viruses through the transfusion of insufficiently safe blood products, in France as in many other Contracting States, before techniques for detecting and eliminating pathogens had been developed and made widespread. Instruments of international law were adopted to respond to this major health crisis and to pursue the same objective of protecting public health. Moreover, the positive obligations arising from Article 2 of the Convention imply the establishment of a regulatory framework requiring hospitals to adopt measures to protect the lives of their patients ([89]).

  • Necessity of the interference

In the Court’s view, the collection and storage of the personal data at issue were based on relevant and sufficient grounds because such data – relating to selection procedures for potential blood donors – contributed to ensuring the safety of blood transfusion ([93]).

To assess whether the interference was proportionate and struck a fair balance between competing public and private interests, the Court proceeded to consider whether domestic law provided appropriate safeguards ([94]). In light of the sensitivity of the data, the Court held it was particularly important that it comply with the quality requirements of Article 5 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 108, “the 1981 Convention”): the data should be accurate, updated where necessary, adequate, relevant and proportionate to the purposes of the processing, and kept for no longer than necessary ([95])[3]. Also relevant was the absence of the individual’s consent in the collection, storage or use of personal data, which required a more rigorous examination of the necessity of the interference by the Court ([84], [95]).

Here, the applicant had been subject to a contraindication for men who had sexual intercourse with other men, simply because he had refused to answer questions relating to his sexuality during his medical interview. Nothing submitted during this assessment permitted the drawing of such a conclusion, and the data entered was based purely on speculation with no proven factual basis. The Court reiterated that the burden was on the authorities to demonstrate the accuracy of the data collected. Moreover, the data had not been updated following the applicant’s complaint ([96]).

More generally, the Court stressed that it was inappropriate to collect personal data relating to sexual practices and orientation on the sole basis of speculation or presumption. In the present case, it would have been sufficient to keep a record of the applicant’s refusal to answer the questions relating to his sexuality, since that factor alone was sufficient to justify a refusal to allow him to donate blood ([97]).

Secondly, the EFS had provided for the retention of the applicant’s data until 2278 and did not demonstrate that the data was regulated in a way to prevent it from exceeding the period necessary for the aim pursued. The Court emphasised that the data retention period must be regulated for each of the categories of data concerned and should be revised if the purposes for which it was collected changed ([98]).[4] Whilst the Court recognised a certain margin of appreciation for national authorities in this respect, the scope of which depended on a number of factors,[5] the excessive length of time that the data in the present case was stored made it possible for it to be used repeatedly against the applicant, resulting in his automatic exclusion from being a blood donor ([84], [98]).

Article 8 taken separately and in conjunction with Article 14

The Court ruled that the complaints about the decisions excluding the applicant from donating blood in 2004 and 2006 were out of time ([108]). Regarding the decision of 2016, the Court found that the applicant could not invoke a violation of Articles 8 and 14 of the Convention as the ministerial order complained of was not yet in force on the date in question. Additionally, the 2016 refusal to allow the applicant to donate blood had resulted from the automatic application by the EFS of the contraindication that had been entered in the data processing system in 2004 and was a consequence of the previously found violation of Article 8 of the Convention ([111]-[112]).

Conclusion

This decision highlights that public authorities cannot, in the processing of personal data, make assumptions about an individual’s sexuality based purely on speculation, i.e. without a factual or proven basis. Although the decision does not go as far as detailing the evidential basis required, authorities must be able to satisfy themselves of the accuracy of any such data – and its compliance with the quality requirements of Article 5 of the 1981 Convention – and bear the burden of demonstrating this before the Court.

Further, the decision is a welcome reminder that whilst public authorities enjoy a certain margin of appreciation as regards the retention of personal data, they must put in place procedures to regulate (and revise) the length of time different categories of data are retained, so they are kept no longer than necessary for the aim pursued. This requires more thoughtful consideration of exactly which categories of data are needed, why, and for how long, and discourages the use of blanket justifications in the processing of multiple categories of data.

Natalie Nguyen is an incoming pupil barrister at Monckton Chambers.


[1] Drelon v France (2022) ECHR 673. The judgment is published in French. Any translations into English contained in this article are unofficial and informal translations by the author.

[2] See Malone v the United Kingdom (1984) ECHR 10, [66]-[68]; Rotaru v Romania ECHR 2000-V, [55]; S and Marper v the United Kingdom (2008) ECHR 1581, [95]; and L.H. v Latvia, app no 52019/07 (ECtHR, 29 April 2014), [47]-[59].

[3] See, in particular, S and Marper, cited above, [101]-[107], and Cemalettin Calih v Turkey, app no 22427/04, (ECtHR, 18 November 2008), [34]-[37].

[4] See Cemalettin Canli and Rotaru v Romania, cited above.

[5] Such factors include the nature of the Convention right and its importance for the person concerned, the nature of the interference and its purpose.

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