The Data Protection Authority calls for restaurants and cinemas to be excluded from the Belgian health pass
If the basis of the health pass is indeed public health, then the Authority calls for a series of venues and events to be removed from the list of those subject to the pass: “events and festivals taking place ‘in static mode’, restaurants, as well as cinemas, theatres and museums.”
The Data Protection Authority highlights the contradiction between the report of the Group of Experts in charge of the management strategy (GEMS) of 31 August and the introduction of the health pass “in venues and events that can be subject to measures less intrusive on the right to privacy”, such as ventilation, mask-wearing, testing and quarantine, as well as social distancing.
Pass knocked back
In its opinion delivered “as a matter of extreme urgency” on the preliminary draft ordinance on the extension of the Belgian health pass (“Covid Safe Ticket” or CST), the Data Protection Authority points to numerous problems with the legislation currently being adopted: contradiction with the opinion of government experts, lack of assessment of the state of the epidemic, adoption mechanism, lack of assessment of advantages and disadvantages.
Vaccination blackmail
The Authority points out that the health pass is a “device that intrudes on the right to privacy” and that, as such, recourse to such an instrument must be “necessary and proportionate”, which does not seem to be the case here.
In passing, the Authority's opinion cites the position of the legislator: “an alternative less intrusive on privacy than the CST would be the spontaneous vaccination of 95% of the population, across all social groups”! So this is indeed vaccination blackmail, and not about avoiding hospital overload or keeping certain sectors open, as the pass's basic criteria emphasise.
Not sufficiently justified
The public authorities must “better justify” that the advantages that the pass brings (protecting health, limiting the circulation of the virus to a level that avoids hospital overload and keeps borders, schools and shops open) outweigh the disadvantages and risks (including the risk of creating a false sense of security, the risk of discrimination, the risk of habituation and social normalisation of behaviour that infringes fundamental rights, and the risk of “sliding” towards a surveillance society) that it introduces.
The Authority also stresses that the epidemiological situation must be assessed not only against the basic criteria (incidence rate and trend, positivity rate, contagiousness of circulating variants, vaccination rate of risk groups by the Superior Health Council, rate and speed at which general hospital beds and covid intensive care beds are filling up), but also in the light of the pass's objective, namely: “to avoid overloading the healthcare system while keeping sectors open”.
Warning about democracy
Even though the legislation surrounding the health pass provides for informing elected representatives by means of a “file setting out the elements that justified the introduction of the measure”, the Authority nevertheless suggests providing for a parliamentary confirmation mechanism similar to the one provided for by the Pandemic law.
While the State plans to evaluate the use of the pass monthly, the Authority specifies that this evaluation must focus on the necessity and proportionality of the measure in order to guarantee “that the interference with the right to privacy is (and remains) strictly necessary and proportionate in view of the circumstances”. This regime can, however, be extended in three-month increments until 30 June 2022.
Not on a voluntary basis
Finally, the Authority stresses that it is unacceptable to delegate to the organisers and operators of certain venues and events the power to decide whether or not to require the pass to be shown. It is indeed up to the legislator to determine the conditions under which recourse to the pass is necessary and proportionate, because the data processing carried out in connection with the use of a pass “will only be lawful if it is necessary for compliance with a legal obligation”.
A merely advisory opinion
The opinion of the Data Protection Authority is advisory, but it gives an idea, from an independent public body, of what is at stake in the forthcoming legislation in terms of protecting the right to respect for private life, as guaranteed by Article 22 of the Constitution and by various European treaties, and citizens' fundamental freedoms. Legislators are under no obligation to take it into account.
By Hughes Belin, Editor-in-chief at BAM!
https://www.md-universal.eu/images/avis-n-164-2021.pdf
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