In the UK the High Court ruled that talking is not covered by data protection laws. They said that oral disclosures (in this case provided during a telephone call) do not constitute ‘data’ and consequently do not fall within the scope of the GDPR.
The background to this case is very interesting. Mr S referred himself to a charity which provided a wide range of services including counselling, as well as advice in relation to health and well-being. He disclosed details of his substance use and self-harm. Following an initial assessment, the charity shared that information with Mr S’s GP over the phone, due to concerns for his welfare. While the call was entered into the GP’s records, no documents or written records were shared with the GP by the charity and all communications with the GP were verbal.
The charity’s confidentiality policy (which was set out in a form that Mr S had filled in before his initial assessment) provided that if there was a reason to be seriously concerned about welfare, the charity may need to break confidentiality without seeking consent. Mr S’s claim was that the oral disclosure by the charity to his GP was: a breach of data protection law, a breach of confidence and contrary to the Human Rights Act.
The court decided that talking is not covered by data protection laws and that an oral disclosure of information did not breach data protection law – because the definition of data is limited to information that is recorded electronically or manually and does not extend to oral information. As such, a verbal disclosure did not constitute the processing of personal data, and thus could not give rise to a claim.
The court considered that, even if the disclosure had constituted data processing, the charity’s disclosure was necessary to protect Mr S’s vital interests. Mr S’s other claims were also struck out. Although a duty of confidence was owed to him, this permitted the very limited disclosure to his GP that Mr S was made aware of. Finally, the charity was also not a public authority for the purposes of the Human Rights Act 1998.
Organisations should ensure that the notion of what constitutes “data” for the purposes of processing personal data has been correctly understood.
Our Data Protection as a Service offering can provide your organisation with all of the necessary tools for identifying what constitutes personal data. Learn more about the service here.