CEDH · CASELAW;CLIN;ENG — 8 septembre 2022

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France - 3153/16 and 27758/18 Judgment 8.9.2022 [Section V] Article 8 Article 8-1 Respect for private life Collection of data on sexual behaviour of potential blood donor based on speculation, and excessive length of data retention by public body: violation Facts – In 2004 the applicant went to give blood but refused to answer questions about his sex life that were put to him during a medical interview. Furthermore, and solely as a result of that refusal, he was registered by the French blood donation service (Établissement français du sang, “the EFS”), a State-run body, as being excluded from giving blood by a contraindication attributed on a permanent basis to men who had had sexual intercourse with other men. His offer to give blood was rejected on this ground. Application no. 3153/16 was submitted following the dismissal of a criminal case based on a complaint lodged by the applicant for discrimination. The applicant’s appeals were unsuccessful. Law – Article 8: The EFS being a State-run institution, this complaint was examined from the standpoint of positive obligations. 1. Whether there was an interference – Personal data showing that the applicant had been attributed a contraindication to blood donation, used under domestic law for men who had had sexual relations with other men, had been collected and retained in a database initially controlled by one of the branches of the EFS. That data contained explicit information on the applicant’s presumed sex life and sexual orientation. The fact that the contraindication had been registered by a mere reference to a code rather than an explicit description of sexual conduct was not decisive. In addition, any data collected in 2004 was to be retained until 2278. There had thus been an interference with the applicant’s right to respect for his private life. 2. Whether the interference had a legal basis – There was an exception under domestic law, for medical purposes, to the prohibition on collecting and processing data on the health or sex life of individuals. The processing of such data was authorised when necessary for the “management of health services” and domestic authorities had a discretionary power to set up such a database. The foreseeability of this legal basis had to be assessed in its legal context. At the relevant time, Article 18 of Directive 2002/98/EC required the recording of the results of procedures for donor assessment and examination. An order of 10 September 2003 provided for the keeping of an “electronic donor data file” containing “any temporary or permanent contraindications to donation, using coding” in respect of individual donors. That legal framework, taken as a whole, had defined with sufficient precision the extent and conditions for the exercise of the discretionary power granted to the domestic authorities and had thus enabled the applicant to regulate his conduct, either to pursue or to renounce his offer of donating blood, in full knowledge of the consequences. The interference had thus been in accordance with the law. 3. Whether it pursued a legitimate aim – The interference at issue pursued the legitimate aim of health protection. In this connection, a large number of people had been contaminated by HIV or by hepatitis viruses through the transfusion of unsafe blood products, in France as in many Contracting States, before techniques for the detection, inactivation and elimination of pathogens were developed and made widespread. International legal instruments had been adopted in response to this major health crisis and pursued the same objective of protecting public health. Moreover, the positive obligations arising from Article 2 of the Convention required a regulatory framework under which hospitals had to ensure the protection of their patients’ lives by taking the appropriate measures. 4. Whether the interference was necessary – The collection and retention of personal data relating to the results of the procedures for selecting candidates for blood donation, and in particular to any grounds for exclusion from donation, contributed to ensuring blood safety. Without it being necessary to investigate whether other donor selection criteria could have been used, the collection and retention of the data at issue had been based on relevant and sufficient grounds. In view of the sensitivity of the personal data at issue, which included indications of the applicant's sexual orientation and practices, it was particularly important to ensure that they met the quality requirements laid down in Article 5 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. It was particularly important for such data to be accurate and, where necessary, kept up to date, and to be appropriate, relevant and not excessive in relation to the purposes of the processing, and to be kept for no longer than was necessary. Moreover, the data at issue, which concerned the applicant's privacy, had been collected and retained without the applicant’s express consent. Consequently, the Court had to carry out this examination in a rigorous manner. Firstly, the accuracy of the personal data had to be assessed in the light of the purpose for which they were collected. In the data-processing at issue, the purpose of this category of data was to ensure compliance with a specific contraindication to donation, which at the time was permanently prescribed by domestic law. To that end, there had to be a precise and accurate factual basis. However, the applicant had been attributed a specific contraindication for men who had had sexual intercourse with other men solely on the ground that he had refused to answer questions relating to his sex life during the pre-donation medical interview. None of the elements submitted to the doctor’s assessment would have allowed such a conclusion to be drawn about his sexual behaviour. It was nevertheless this reason for exclusion from donation that had been recorded and retained. The data collected had been based on mere speculation, without any proven factual basis. The onus had been on the authorities to demonstrate the accuracy of the data collected. Moreover, the data had not been updated following the applicant’s protests and complaint. Furthermore, it was inappropriate to collect personal data relating to an individual’s sexual practices and orientation on the sole basis of speculation or presumption. Moreover, in order to achieve the objective of blood safety, it would have been sufficient to keep a record of the applicant’s refusal to answer the questions relating to his sexuality, as that factor alone would have been sufficient to justify a refusal to allow him to give blood. Secondly, the Government had not demonstrated that, at the material time, the retention period for the data at issue had been regulated in such a way that it could not exceed the time necessary for the purposes of the data collection. At the time the data at issue had been collected in 2004, the IT tool used by the EFS had provided for their retention until 2278, thus making it possible to use them repeatedly. As of 26 May 2016, almost twelve years after their collection, the data relating to the ground of exclusion were still in the file. In this connection, the data retention period had to be regulated for each of the categories of data concerned and it had to be revised if the purposes of the data collection had changed. In the light of the EFS's consistent practice, the excessive length of the data retention period had made it possible for that data to be used repeatedly against the applicant, thus resulting in his automatic exclusion from blood donation. In view of the foregoing, the respondent State had exceeded its margin of appreciation in this matter. Conclusion : violation (unanimously). Article 41: EUR 3,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes