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Germany: DSK finds temperature checks regularly lack suitability and necessity

The German Data Protection Conference ('DSK') published, on 10 September 2020, its resolution on the use of thermographic cameras and electronic temperature measurement in the context of the COVID-19 ('Coronavirus') pandemic. In particular, the DSK stated that because a specifically heightened temperature can be a sign of a Coronavirus infection, contactless electronic temperature measurements through infrared are increasingly used as a means to manage the admittance to formerly public spaces such as airports, shops, offices of public agencies, or workplaces. Furthermore, the DSK stated that temperature measurements regularly qualify as processing of personal data and that such actions in public spaces may, in principle, be based on public and legitimate interest as provided for under Articles 6(1)(1)(e) and 6(1)(1)(f) of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), in combination with Article 9(2) of the GDPR and that, for workplaces, Article 88 of the GDPR may serve as a legal basis. Furthermore, the DSK raised the point that consent as a legal basis would often not work in practice because consent cannot be considered to be given voluntarily if, as a consequence of refusing to consent, a person is not allowed to enter a certain premises. Furthermore, the DSK highlights that under the current legal situation in German, there is no legal obligation for employers to conduct electronic temperature checks based on Article 6(1)(c) of the GDPR.

Moreover, the DSK highlighted that temperature measurements would often not qualify as a suitable and necessary means because a heightened body temperature cannot directly be assumed to be a symptom of Coronavirus, particularly because some infected persons do not show this symptom. Moreover, the DSK stated that milder means such as the respect of hygiene and social distancing measures and interviewing employees should be used.

You can read the resolution, only available in German, here.