The Portuguese data protection supervisory authority has imposed a fine of EUR 400,000 on a hospital. This is – at least as far as is known – the first significant fine across Europe following the entry into force of the General Data Protection Regulation (GDPR) on May 25, 2018.
The Portuguese data protection authority CNPD (Comissão Nacional de Protecção de Dados) has announced that a large part of the fine was based on the fact that too many people had access to patient data at the hospital concerned. For example, data that was supposed to be accessible only to physicians could also be accessed by technicians. In addition, nearly 1,000 users were registered in the system as “doctors,” although the hospital actually employed just under 300 physicians.
Personal data must be protected – and not just since the DSGVO came into force – in such a way that only those employees have access who actually have to work with precisely this data and therefore need access. This principle is now also explicitly enshrined in law under the heading “privacy by design” (or “data protection through technology design”).
This principle applies in particular to the hospital sector, since this involves especially sensitive data that is also protected by criminal law in Germany. An incident like the one in Portugal could therefore also bring the law enforcement authorities on the scene in Germany.
The hospital reportedly plans to take legal action against the fine. In this respect, it remains to be seen whether the competent courts share the legal assessment of the data protection authority and, in particular, consider the amount of the fine to be appropriate.
Basically, according to the known facts, this is a serious case, which, moreover, concerns particularly sensitive data. However, it also shows that the authorities are prepared not only to look for very obvious violations, but also to delve deeper into the systems of those responsible.
The German data protection supervisory authorities issued guidance on the use of hospital information systems years ago. One focus of this guidance is on the design of access rights. It can be assumed that the recommendations contained in the guidance will largely remain valid after the GDPR comes into force.
Those responsible – not only from the healthcare sector – are therefore well advised to put their authorization concepts to the test. In the case of official controls, the responsible party must demonstrate an authorization concept in which access is limited to what is actually required. The controller must also be able to use it to justify why a person needs access to certain data. Even the lack of proof (under the keyword “accountability”) can trigger a fine.
© 2023 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.
KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.