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Title: Challenges of the EU General Data Protection Regulation

for Biobanking and Scientific Research
Author: Chih-hsing Ho
EAP Date (approved for print): 3 February 2018

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Challenges of the EU General Data Protection
Regulation for Biobanking and Scientific Research

CHIH-HSING HO*

Abstract

This paper discusses challenges arising from the application of the EU General Data
Protection Regulation (GDPR) in the context of biobanking and biomedical
research. Medical and health research has increasingly relied on processing and
linking vast amounts of genetic- and health-related data. The traditional, highly-
specific consent form and anonymisation required for privacy protection may not be
appropriate for data-intensive longitudinal population-based research. After long
debates and lobbying efforts from the health and research communities in the EU, the
GDPR has been revised to adopt a more research-friendly approach by including
several derogations for consent and processing of data for secondary purposes.
However, challenges remain in that the scope of scientific exemptions is as yet
unclear, and the rules adopted by EU Member States have yet to be harmonised.
Setting up a more accountable governance framework that can work with existing
ethics review mechanisms to allow for biomedical research, especially when privately
funded research entities are involved, poses questions worthy of further analysis. This
paper elucidates these challenges and attempts to provide a suitable resolution for
making exemptions so that research can be carried out in the public interest.

Introduction

On 14 April 2016, after a long process of debate and negotiation, the European
Parliament adopted the European Union (‘EU’) General Data Protection
Regulation, 1 a reform proposed by the European Commission in 2012 to
address EU Member States’ fragmented EU data protection rules derived

Assistant Research Fellow, Institute of European and American Studies, Academia

Sinica, Taipei, Taiwan. LLM (Columbia), JSM (Stanford), PhD in Law (London
School of Economics). E-mail: chihho@sinica.edu.tw. The author appreciates the
research assistance provided by Janos Meszaros and anonymous referees for
comments. This paper was presented at the APSN 2016 annual conference held at
the University of Auckland. The author would like to thank the conference
organisers, and the helpful comments and discussions raised by the APSN
members and participants.
1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Date Protection Regulation) [2016] OJ L 119/1 (‘GDPR’).

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from the Data Protection Directive (95/46/EC).2 The main purpose of this GDPR
is to set out an EU-wide legal framework for the protection of personal data
that at the same time facilitates the free flow of such data within the European
Union. The GDPR’s predecessor, the EU Data Protection Directive, defined the
basic elements of data protection, upon which EU Member States enacted
individual national legislation. Contrastingly, the GDPR will apply directly to
each Member State and will override national data protection laws in the EU.
The GDPR will be applicable two years after adoption, and will be effective
from 25 May 2018.3

The GDPR sets forth a number of key changes to the EU Data Protection
Directive and several principles relating to enhanced rights for individuals
who are data subjects: for example, the right to be forgotten; the right to data
portability; the processing of personal data; the obligations of data controllers
and processors, such as the mandatory appointment of a Data Protection
Officer; and carrying out mandatory data protection impact assessments. The
GDPR stipulates that personal data need to be processed ‘lawfully, fairly, and
in a transparent manner in relation to the data subject’.4

In addition, in order to reinforce data subjects’ control over their personal
data, in the GDPR proposal, specific consent was introduced as a default
consent model for data collection and therefore re-consent was required for
data processing for different purposes apart from those for which data was
collected.5 This gave rise to serious concerns within scientific communities in
the EU that the proposed GDPR would have devastating impacts on scientific
research, which relies heavily on access to data for prospective unknown
studies, and would hamper the future development of data-intensive health
research.

Several European medical and health research organisations, such as the
Medical Sciences Committee of Science Europe, the Wellcome Trust, the
Public Health Genomics (‘PHG’) Foundation, and the Biobanking and

2 Directive 95/46/EC of the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the processing of personal data
and on the free movement of such data [1995] OJ L 281/31; See Directorate-General
for Justice and Consumers, Reform of EU Data Protection Rules (2016) European
Commission <http://ec.europa.eu/justice/data-
protection/reform/index_en.htm>.
3 Directorate-General for Justice and Consumers, Reform of EU Data Protection Rules
(2016) European Commission <http://ec.europa.eu/justice/data-
protection/reform/index_en.htm>.
4 GDPR [2016] OJ L 119/1, art 5(1)(a).
5 GDPR [2016] OJ L 119/1, arts 6(1)(a), 7.

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BioMolecular Resources Research Infrastructure – European Research
Infrastructure Consortium (‘BBMRI-ERIC’) submitted position papers on the
GDPR proposal in order to reconcile the public interest in research with a
broader framework of individual rights to privacy. The arguments in these
position papers elaborated the common concern with the draft GDPR’s lack of
distinction between the use of data for scientific purposes and other forms of
processing data, such as personal profiling of data subjects or direct
marketing by commercial entities. 6 These research communities urged EU
policy makers to be aware of the possibility that the proposed GDPR may
hinder patients’ interests. They proposed the derogation for consent and
reuse of data for scientific research purposes, arguing that existing ethical
safeguards, such as the approval from ethics committees, guidelines and
codes of conduct, were already adopted as general practices in medical and
health research prior to the GDPR’s enactment.7

After prolonged negotiations, in June 2015, the Council of the European
Union took a more research-friendly approach by including special
provisions for scientific exemptions in the draft GDPR. 8 However, what
impact the GDPR will have on scientific research, especially on existing
biobanking activities, remains to be discussed. For genomics studies, biobanks
have been deemed a useful part of the infrastructure for facilitating wide
ranging, population-based prospective longitudinal studies. Such
biorepositories usually collect extensive samples and data, including medical,
health and life data, and make these available to researchers who apply for
access for unspecified future research purposes.9 In order to maximise the
utility of samples and data stored in biobanks, and to reduce the costs of re-
contacting participants, broad consent has replaced specific consent for data
collection in the biobank practices.10 The extent to which this particular form
of consent to governance is compatible with the GDPR or falls within special
provisions for scientific research is worth further analysis.

6 See the joint statement released by the Wellcome Trust and other research
organisations: Wellcome Trust et al, Impact of the draft European Data Protection
Regulation and proposed amendments from the rapporteur of the LIBE committee
on scientific research, (May 2013)
<https://wellcome.ac.uk/sites/default/files/wtvm054713.pdf>.
7 Ibid.
8 GDPR [2016] OJ L 119/1, arts 5, 6, 9, 89.
9 Helen Swede, Carol L Stone and Alyssa R Norwood, ‘National population-based
biobanks for genetic research’ (2007) 9 Genetics in Medicine 141.
10 M G Hansson et al, ‘Should donors be allowed to give broad consent to future
biobank research?’ (2006) 7(3) The Lancet Oncology 266.

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In addition, the GDPR specifies that pseudonymised data must be treated as
personal data, so further data processing requires consent or legitimate
purposes.11 The GDPR may contradict the general practice in medical research
that treats pseudonymised data as anonymous and permits third parties, who
do not possess the key code, to access data for the necessary linkage in the
long-term follow-up research.

This paper focuses on challenges arising from the GDPR, particularly those
relating to the consent and anonymisation approach for data-intensive
biomedical research. It analyses the GDPR’s conditions and elucidates why
some rules in the GDPR may not be suitable in the context of biomedical
research, given the different types of risks involved and the nature of the
scientific studies. Further, this paper illustrates the remaining challenges for
harmonisation for the GDPR after the adoption of the scientific exemptions,
including the involvement of privately funded research entities in a broad
interpretation of ‘research’. Finally, it attempts to provide a possible
resolution to address these challenges to balance the requirements of data
protection and the need to carry out scientific research for the benefit of the
public.

1 Biobanking and Biomedical Research in Context

In recent years, due to rapid developments in information technology and the
application of big data techniques, the general practice in biomedical research
has changed significantly. Personal data concerning health can be aggregated
through data mining techniques and linkages to yield valuable resources for
further use and analysis. Such data includes data collected from electronic
health records (‘EHRs’), electronic medical records (‘EMRs’), clinical trial
data, and genetic, genomic and other life-related data. As most complex
diseases and cancers that affect large populations are typically caused by a
combination of genetic and environmental factors, rather than individual
genes alone, scientists generally recognise that studying the population
genome, that is, the entirety of a species’ genes across whole populations, is
necessary to understand fully the complex and subtle interactions between
incidences of disease, genes, and the environment.12 Such population studies
in genomics require extensive collections of high-quality tissue samples, and

11 GDPR [2016] OJ L 119/1, art 32(1)(a).
12 See National Human Genome Research Institute, Frequently Asked Questions About
Genetic and Genomic Science (2 March 2016) <http://www.genome.gov/19016904>.

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have fuelled the drive for the establishment of large-scale population
biobanks.13

1.1 The Features of Biobanks

The collection and storage of human tissue samples for medical research has a
decades-long history. However, biobanks are a sophisticated technological
innovation, which facilitates the continuous collection of all types of human
samples and making of linkages with associated epidemiological, clinical and
research data. 14 The wide use of biobanks and associated data creates
difficulties, as the different types of collections with different structures and
purposes may give rise to different technological, ethical and legal
considerations. 15 According to OECD Guidelines, the extent and type of
consultations necessary for the establishment of human biobanks must take
into consideration the nature, purpose and scope of biobanks. The greater the
variety of invited participants, the more numerous the tissue samples and
data to be collected, which may cause greater risks in samples and data
sharing.16

Although a number of significant variables, such as the size, scale and nature
of the samples, will influence the range of biobank activities, including
recruitment, consent practices and governance arrangements, human
biobanks typically share a number of common features. 17 For instance, they
usually anticipate unspecified future research and so have an ongoing and
open-ended nature that challenges the traditional practice of specific
informed consent. Furthermore, in order to link collected biospecimens with
phenotypic data, the banked samples and data may need to be re-identifiable

13 When it is used in this article, the term biobank refers to large collections of human
biological materials that may be linked with personal and health information for
use in health and medical research as in the definition given by the OECD. See also
Mark Stranger and Jane Kaye, ‘Governing Biobanks: An Introduction’ in Jane Kaye
and Mark Strange (eds), Principles and Practice in Biobank Governance (Ashgate,
2009) 2.
14 Ibid.
15 Margaret Otlowski, Dianne Nicol and Mark Stranger, ‘Biobanks Information
Paper’ (Information Paper E110, National Health and Medical Research Council,
2010) 9
<https://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/e110_biob
anks_information_paper_140520.pdf>.
16 Organisation for Economic Co-operation and Development, OECD Guidelines on
Human Biobanks and Genetic Research Databases (22 October 2009) 1
<http://www.oecd.org/dataoecd/41/47/44054609.pdf>.
17 Mats G Hansson, ‘Ethics and Biobanks’ (2009) 100 British Journal of Cancer 8.

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by biobank custodians even though that data may have been encrypted and
the means of identification removed. Since it is not possible to ensure that the
samples and data are completely secure against identification, appropriate
mechanisms need to be set for data management to minimise the risk of
individuals being identified. 18 In addition, as biobanks are more concerned
with the public benefit for future generations than with the individual benefit
of participants themselves, they focus on the common good and as a result
their proper governance needs to balance individual and collective interests.

The nature of biobank collections can be classified in terms of the purely
prospective integrations of pre-existing collections, or some combination
thereof. In terms of the extent to which data linkage is possible, types of
biobanks may be categorised depending on the coding system or
anonymisation procedures used for data protection. If funding sources and
business models are taken into account, the categorisation may be further
refined into distinctions between public or private, commercial or non-
commercial. Different types of biobanks require different governance
frameworks for issues regarding consent and privacy. For instance, whether
or not a biobank is commercially oriented may have a significant influence on
people’s willingness to participate, as the business model of profit
maximisation may not be accepted by a participant who might otherwise
wish to contribute samples to a public, non-commercial biobank.

Biobanks may also be distinguished from other collections of biospecimens,
created for research or other purposes but also used for research, even though
the boundaries between the biobanks and these kinds of collections may not
be easily drawn. For instance, the genetic research database used for the
International HapMap Project 19 stored de-identified genetic information
compiled from multiple donors. Even though the samples and cell lines used
by the project could be identified as coming from one of the four populations
taking part in the study, they were not linked to any individual participant.
This is very different from a biobank in which re-identification and data
linkage are necessary. Making these distinctions not only helps to clarify the
term ‘biobanking’ but also assists in elucidating a more appropriate
governance framework for data protection in the context of biomedical
research.

18 Georg Lauss et al, ‘Towards Biobank Privacy Regimes in Responsible Innovation
Societies: ESBB Conference in Granada 2012’ (2013) 11(5) Biopreservation and
Biobanking 319.
19 International HapMap Consortium, ‘The International HapMap Project’ (2003) 426
Nature 789.

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1.2 Substantial Public Interest

Biobanks provide scientific researchers with important resources in two main
areas: the interaction between genetic factors underlying common complex
diseases and the environment, and the translation of biomedical research into
diagnostic and therapeutic applications through pharmacogenomics in
pursuit of personalised medicine.20 This ultimately provides an improvement
in public health.

In the past, medical care was unable to take account of an individual’s genetic
variability. Instead it focused on standards of care based on epidemiological
studies of large cohorts. Traditionally, clinical diagnosis and treatments were
based on patients’ symptoms and their medical and family histories. As such,
medical treatment was reactive rather than prospective. In other words,
clinics offered medication only after symptoms appeared.

Recent advances in genomics have introduced a new means of identifying
and understanding certain diseases, especially in terms of the functioning of
genes and their impact on the development of complex diseases. The
HapMap project has laid the groundwork for deepening our understanding
of similarities and differences in genetic makeup at an individual level, and
made possible for the application of a new tool, Genome-Wide Association
Studies 21 (‘GWAS’), to examine how one’s genome may affect a person’s
susceptibility to diseases.

GWAS could have a significant impact on medical care, especially the
development of precision medicine, for which it is important to understand
how genetic variations contribute to common, complex diseases. Studies are
expected to benefit health management when it is widely applied to medical
care. They sit alongside other innovative technologies, so that health
professionals can tailor prevention programs to patients according to their
genetic makeup, to lower health management costs to a greater extent.22

20 It refers to the notion that all medical decisions and treatment, including
preventive and therapeutic care can be tailored to adapt to each individual’s
particular genetic makeup.
21 A genome-wide association study is a new method for scientists to strategically
search genetic markers that involves rapidly scanning SNPs across the complete set
of human genomes to find genetic variations associated with a particular disease.
See National Human Genome Research Institute, Genome-wide Association Studies
(27 August 2015) <http://www.genome.gov/20019523>.
22 For more information about the application of the genome-wide association
studies, see National Human Genome Research Institute, Genome-wide Association
Studies (27 August 2015) <http://www.genome.gov/20019523#gwas-3>.

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These rapid developments in biomedical studies have turned traditional
medical research into a data-intensive field. This paradigm shift encourages
cross-border exchange of human biological resources and associated data. A
well-tailored data protection framework, as it has been argued by many EU
health research communities, will be able to ease access to, and the sharing of,
data for scientific research purposes, and enable further biomedical
innovation. This will bring greater benefit and wellbeing to patients and
citizens.

As it is widely recognised that personal data is of critical importance in
maintaining and advancing scientific research, the EU medical and health
communities have demonstrated a strong support for derogations set out in
the proposed GDPR to continue performing outstanding research. In
addition, since scientific and medical research aims at fostering knowledge
and developing new treatments to prevent or cure disease, the BBMRI-ERIC,
along with other scientific networks, urged EU institutions to consider
scientific research as being of substantive public interest.23 The adoption of
scientific exemptions is essential to make a necessary distinction between data
processing for research purposes and other purposes that lack a substantial
public interest.

Reconciling patients’ interests and individual rights to privacy has been of
foremost priority for many EU medical and health research communities. In
the position paper of Science Europe, EU institutions were recommended to
set up a governance framework to ensure privacy protection, while at the
same time facilitating access to data and medical research across Europe.

Concerns were raised that the proposed GDPR did not proportionately
reconcile these rights, nor appropriately distinguish between the commercial
and academic environments in which medical and health research are
performed.24 Similarly, the term ‘high public interest’,25 used in the proposed
GDPR for the processing of sensitive data, had been criticised in the BBMRI-

23 Biobanking BioMolecular Resources Research Infrastructure (‘BBMRI-ERIC’),
‘Position Paper on the General Dara Protection Regulation’ (Position Paper,
October 2015) 3 <http://www.bbmri-eric.eu/wp-content/uploads/BBMRI-ERIC-
Position-Paper-General-Data-Protection-Regulation-October-2015_rev1_title.pdf>.
24 Scientific Committee for Medical Sciences of Science Europe, ‘The Benefits of
Personal Data Processing for Medical Sciences in the Context of Protection of
Patient Privacy and Safety’ (Opinion Paper, Science Europe, May 2013) 5
<https://www.scienceeurope.org/wp-
content/uploads/2014/05/ScienceEuropeMedicalPaper.pdf>.
25 Parliamentary amendments for Recital 123a and Article 81(2a) (a.o.) of the draft
GDPR; See Biobanking BioMolecular Resources Research Infrastructure, above n
23, 3.

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ERIC position paper as constituting an unnecessary politicisation of
research.26 A change of the wording to ‘public interest’ was recommended by
the scientific communities. 27 A comparable request for derogations can be
found in data processing that involved psuedonymisation under the ‘highest
technical standards’. According to the BBMRI-ERIC position paper, the
change of the wording to ‘reasonably high’ standard was strongly
recommended, in order to avoid unnecessary conditions set up under the
GDPR that will have a detrimental impact on scientific discovery.28

2 Consent

The GDPR provides a clear definition of consent. Article 4(11) stipulates that a
valid consent obtained from the data subject needs to be ‘freely given,
specific, informed and unambiguous’. In addition, such consent must take the
form of a clear affirmative action, indicating the data subject’s agreement to
the processing of his or her personal data. This definition of consent is based
on the dominant specific consent model that brings challenges to biobanking
activities, which mainly rely on broad consent. When consent was obtained
for data collection for the establishment of existing biobanks, it was not
possible to predict what kinds of research would be possible in the future.
The same is true of new collections; we cannot anticipate all their potential
future research uses. Moreover, treating biobanks as an important
infrastructure makes them valuable resources for research. They function like
bio-libraries or bio-repositories, continuing the collection and storage of
human specimens and associated data in order to make them available for
unspecific future research. As a result, it has been recognised that the
traditional specific consent model is not practical for biobanking operations.
Broad consent involves consenting to a general governance framework rather
than a specific research purpose. In biomedical practice, this broad consent
provides an alternative and legitimate solution to longitudinal population-
based research, which is reliant on vast amounts of data being processed and
further linked for later research.

Broad consent, used frequently in biobanking, is slightly different from
blanket (or open) consent. The latter refers to permission given by the data
subject to further processing and reuse of his or her specimens and associated

26 Biobanking BioMolecular Resources Research Infrastructure, above n 23, 8.
27 Ibid.
28 Ibid 4.

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data for any nonspecific future research purpose. 29 Considering that re-
consent costs are simply too high and burdensome for participants to be re-
contacted every time there is a need to obtain their consent for a new research
purpose, blanket consent has been used to replace specific informed consent
in order to facilitate medical and health research. Concerns about open
consent usually focus on the absence of continuous supervision of the reuse of
tissue samples and data after consent has been given at the time of data
collection. Broad consent is a compromise between the two ends of the
consent spectrum: open consent and traditional specific informed consent.
Broad consent authorises the use of samples for unspecific research purposes,
but it relies on ethics (or user) committees to review applications for access to
biobanks for data processing or linkage. In practice, review by ethics
committees focuses on the governance framework provided by the
biobanks. 30 Such a governance framework provides guidance for various
biobank stakeholders, and covers the rules and guidelines on data protection,
confidentiality and the criteria for access. This provides an important
safeguard to supplement the broad consent model. The UK biobank and
many biorepositories associated with the BBMRI Consortium have adopted
broad consent models as default mechanisms for practicing consent in the
context of biobanking research. It is hoped that a proper balance will be
reached between respect for individual autonomy and facilitating medical
research.

In the proposed draft GDPR, the broad consent model had not yet been
considered a valid form of consent, according to the strict definition of
consent set out in the provisions. This caused major concerns for medical and
health communities in the Europe about the legitimacy of existing biobanking
projects and future biobank activities. After a long process of discussion and
lobbying by scientific communities, in the final version of the GDPR the
legislators recognised that it would be impractical to use specific consent in
longitudinal studies and they took a more research-friendly position by
including scientific exemptions in the GDPR. In recital 33 of the GDPR, it is
acknowledged that it is often not possible to identify fully the purpose, use
and processing of personal data for scientific research at the stage of data
collection. As a result, data subjects should be permitted to give their consent
to certain broad areas of scientific research, rather than being asked to
specifically consent to particular purposes, so long as such practice of consent

29 Dara Hallinan and Michael Friedewald, ‘Open consent, Biobanking and Data
Protection Law: Can Open Consent be ‘informed ’under the Forthcoming Data
Protection Regulation’ (2015) 11(1) Life Sciences, Society and Policy 1.
30 See UK Biobank Ethics and Governance Council, UK Biobank Governance
Framework-Version 3.0 (October 2007) <https://www.ukbiobank.ac.uk/wp-
content/uploads/2011/05/EGF20082.pdf>.

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complies with ethical standards for scientific research.31 Given this flexibility
in consent requirements, personal data can now be repurposed for secondary
use, which is approved by ethics committees. There is no need to obtain
further consent for additional processing of data once broad consent has been
given by data subjects at the time of data collection.

3 Processing of Personal Data

3.1 The Definition of Personal Data

As both the EU Directive 95/46/EC and the GDPR govern only the collection
and processing of ‘personal data’, any information not so defined is therefore
outside of the scope of the data protection rules, and researchers need not pay
heed to data protection principles. As a result, how personal data is defined is
critical to the appropriate application of the GDPR.

According to article 4 (1) of the GDPR, personal data refers to ‘any
information relating to an identified or identifiable natural person (‘data
subject’)’.32 It stipulates that an identifiable person is

one who can be identified, directly or indirectly in particular by reference to an
identifier such as a name, an identification number, location data, online
identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that
person.33

The definition of personal data in Directive 95/46/EC remains mostly
unchanged under the GDPR, however, several new identifiers, such as
location data, online identifiers, and genetic data have been explicitly
included in the GDPR, which may result in additional compliance obligations
for some associated organisations. In addition, the GDPR maintains the
existing distinction between sensitive data and non-sensitive data, and makes
sensitive data a special category of personal data subject to additional
protection.34 The categories of the sensitive data are largely the same as that
covered by the EU Directive 95/46/EC. Nevertheless, as a result of
consideration of scientific developments, the GDPR now enlarges its

31 GDPR [2016] OJ L 119/1, rec 33.
32 Ibid art 4(1).
33 Ibid.
34 Ibid recitals 10, 34, 35, 51, art 9(1).

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categories by explicitly including genetic and biometric data as sensitive
personal data.35

3.2 Processing of Sensitive Personal Data

The processing of sensitive personal data, like genetic and health data, is
prohibited under the GDPR, except in certain defined circumstances. Article
9(2) of the GDPR enumerates the justifications for processing of sensitive data.
This list of legal processing is exhaustive, and the processing of sensitive data
outside of the enumerated situations is considered illegal under the GDPR.

One of the required conditions is the explicit consent of the data subject. 36 As
mentioned earlier, that consent, according to the definition in the GDPR, must
be given freely, and must be specific, informed and unambiguous. 37 In
addition, the consent needs to satisfy the ‘purpose limitation’ requirement. As
a result, consent to processing sensitive data cannot be permitted for
prospective unknown purposes, as is the practice under the broad consent
model in biobanking research. However, the GDPR permits derogations for
research, and Member States can delineate under what circumstances the
prohibition against processing sensitive data may not be lifted by the specific
consent requirement. 38

The GDPR also permits the processing of sensitive data when it is in the
public interest for reasons of public health.39 Examples of the public health
exemption include ‘protecting against serious cross-border threats to health’
or ‘ensuring high standards of quality and safety of health care and of
medicinal products or medical devices’. 40 Under these circumstances,
processing of sensitive data can be permitted if it is on the basis of EU or
Member State law that provides suitable measures to safeguard the rights and
freedoms of the data subject. 41

In addition, the justifications apply when such processing of sensitive data is
necessary for scientific research purposes. 42 Under this scenario, the
processing needs to be subject to appropriate safeguards, which must ensure

35 Ibid.
36 Ibid art 9(2)(a).
37 Ibid art 4(11).
38 Ibid art 9(2)(a).
39 Ibid art 9(2)(i).
40 Ibid.
41 Ibid.
42 Ibid art 89(1).

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that technical and organisational measures are in place to comply with the
principle of data minimisation.43 According to the GDPR, such measures may
include techniques of pseudonymisation. However, if anonymisation rather
than pseudonymisation can satisfy the purpose of processing sensitive data,
that technique should prevail.44

Furthermore, under the GDPR, there can be limitations on a data subject’s
rights, including the right to access, the right to rectification, the right to
restriction of processing and the right to object, as scientific exemptions are
applied to the processing of sensitive data.45 However, such exemptions are
subject to the same conditions and safeguards as stipulated in the GDPR to
the extent that such rights are likely to render impossible or seriously impair
the ends of scientific research, and such derogations are necessary for the
fulfilment of these purposes. 46 Nevertheless, the scope of derogations is not
without limitation. According to the GDPR, Member States have discretion to
maintain or introduce further conditions, including limitations for processing
several special categories of sensitive personal data, such as genetic data,
biometric data or data concerning health.47

3.3 Anonymisation and Pseudonymisation

As the EU Directive 95/46/EC and the GDPR apply only to personal data, data
that can no longer be connected to, or under any circumstance be associated
with a particular individual, are considered anonymised data that falls
outside of the application of data protection rules. As the anonymisation of
data is irreversible, it cannot be used to identify data subjects by any method.
Thus the processing and reuse of such data do not need to comply with data
protection principles. Several researchers have studied the effectiveness of
various anonymisation techniques. In reality, it may not be possible to claim
any technique is absolutely effective at anonymisation, especially considering
the advances in big data applications that make it easier to single out a
particular individual through data mining. Under the GDPR, however, data
can be considered anonymised so long as such data can no longer identify an

43 Ibid.
44 Ibid.
45 Ibid art 89(2).
46 Ibid.
47 Ibid art 89(4).

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individual by further processing of that data, or by processing it together with
any other available information.48

Pseudonymisation is a technique used for processing of personal data, under
which information can no longer be attributed to a specific data subject
without the use of additional information. That additional information must
be kept separately and subject to appropriate measures to ensure that it
cannot be used to help identify the data subject.49 According to this definition,
pseudonymised data can be considered to have had personal identifiers
removed and kept separately, so the data can no longer identify an individual
directly without the inclusion of an identifier key or algorithm. As it is still
possible for the identity of the data subject to be re-connected to the
pseudonymised data, such data is explicitly recognised by the GDPR as a type
of personal data.

The Medical Sciences Committee of Science Europe (‘MED Committee’)
recommended that EU institutions take into consideration the adoption of a
risk-managed approach in the case of pseudonymised data, to ensure that the
regulatory burden on research is kept to a minimum. 50 According to its
position paper, the MED Committee suggested that the GDPR should exclude
pseudonymised data for medical and health research from the category of
personal data, so long as there are appropriate technical safeguards in the
research practices to minimise the risk of re-identification. In biomedical
research, the technique of pseudonymisation is used frequently in population-
based research and large-scale biobanks. These research types involve the
longitudinal collection of a large amount of participants’ data, which must be
further processed or cross-linked to other databases for future unspecific
research. Pseudonymisation makes these databases an extremely valuable
research infrastructure as it permits cross-linkage between different datasets,
such as national health registries or medical and life data, in order to discover
the causes of diseases. This type of population-based research has been
practiced impressively in many jurisdictions in Europe, for example, by the
National Institute of Statistics in Nordic countries, the Scottish Informatics
Programme (SHIP) in Scotland, the UK Biobank, and the UK Longitudinal
Study Center in England.51 Although technically speaking, pseudonymisation
may create a greater risk of re-identification than some anonymisation
techniques, several safeguards and mechanisms, such as reviews from ethics

48 See Office of the Data Protection Commissioner (Ireland), Anonymisation and
psuedonymisation <https://www.dataprotection.ie/docs/Anonymisation-and-
pseudonymisation/1594.htm>.
49 GDPR [2016] OJ L 119/1, art 89(5).
50 Ibid.
51 Scientific Committee for Medical Sciences of Science Europe, above n 24, 8.

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committees for access to databases, have been employed to protect
participants in biomedical research.

Foreshadowing that this suggestion might not be accepted by legislators (a
correct assumption, as it turned out), the MED Committee’s position paper
continued to highlight the importance of EU institutions making amendments
that recognise the existing, well-established protocols for the responsible use
of pseudonymised data in medical and scientific research. The aim was to
ensure that the regulatory requirements for treating pseudonymised data as
personal data are proportionate to a relative lower risk of re-identification. In
addition, the Committee recommended a case-by-case approach, along with
appropriate oversight, clear procedures and suitable controls for using
decryption keys with pseudonymised data for re-identification purposes in
scientific studies.52 The Committee further suggested that this approach ought
to be built on the existing safeguards for processing pseudonymised data that
have been commonly adopted in scientific research communities across
Europe.

4 Challenges to Harmonisation and the Application of
Scientific Exemptions

4.1 Privately Funded Research

Even though the medical and health research communities have been
delighted to see EU institutions take a more open position to welcoming data-
intensive research, several challenges remain in the application of scientific
exemptions under the GDPR. The first, and most important, concerns the
unclear scope of scientific exemptions and their interpretation. According to
recital 159, the GDPR adopts a broad definition of ‘research’ regarding the
processing of personal data that includes not only fundamental and applied
research, but also privately funded research. 53 Given the broad interpretation
of research, there is little room to distinguish between research carried out by
public or private entities, so long as ‘data processing’ satisfies the purpose of
scientific research. It brings an immediate challenge to the issue of privately
funded research. For example, it is unclear whether commercial market
research may be classified as scientific research and therefore be covered by
the exemptions under the GDPR.54

52 Ibid.
53 GDPR [2016] OJ L 119/1, recital 159, [1].
54 Michelle Goddard, ‘The Changing Face of Compliance: Preparing Healthcare
Researchers for EU Data Protection Reforms’ (Speech delivered at the British
Healthcare Business Intelligence Association Annual Conference, London, 9 May

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Generally, under the GDPR, the processing of personal data for secondary
uses or purposes cannot be permitted except under such circumstances that
the processing is compatible with the purposes for which the personal data
were initially collected.55 However, this restriction on secondary processing of
personal data may be exempted for data controllers who process personal
data for the purpose of research. 56 Article 5(1)(b) of the GDPR reverses this
general presumption on the purpose of limitation. Under such an exemption,
where technical and organisational measures are in place, secondary uses of
data are possible even without considering if the purpose of the process is
compatible with the original purpose for which data were collected. 57 This
raises concerns about the consent given by the data subjects, as they might not
be willing to give the same consent had they known that the entities of the
data controllers or processors would change in the future.

Several studies have demonstrated the public’s concerns with commercial
access to health data. A survey carried out by Ipsos MORI, a social research
institute, for the Royal Statistical Society reveals that only between 4 – 7 per
cent of the respondents agree that they have a high level of trust in the
appropriate use of personal data by commercial entities, such as internet,
insurance and telecommunications companies.58 This study further illustrates
that among two of the top three reasons for the respondents to stop using a
company are the loss or sale of personal data—but that far outweighs other
reasons such as charging more than other competitors or damaging the
environment.59 On the contrary, the poll showed relatively low opposition (17
per cent) for the government sharing anonymised data among universities
and academic organisations for the purpose of public funded research. 60

2016) 8
<
https://www.bhbia.org.uk/downloads/4162/0/BHBIA_Keynote_Speech_Changi
ng_Face_of_Compliance_-_Formatted_Handout_v1.0.pdf.aspx..
55 GDPR [2016] OJ L 119/1, art 6(4), rec 50.
56 Ibid art 5(1)(b).
57 Ibid: ‘[F]urther processing for archiving purposes in the public interest, scientific
or historical research purposes or statistical purposes shall, in accordance with
Article 89(1), not be considered to be incompatible with the initial purposes’.
58 See Royal Statistical Society, ‘Royal Statistical Society research on trust in data and
attitudes toward data use / data sharing’ (Briefing Note, 22 July
2014) <http://www.statslife.org.uk/images/pdf/rss-data-trust-data-sharing-
attitudes-research-note.pdf>.
59 Ibid 26.
60 Ibid.

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Subsequently, a more sophisticated survey was commissioned by the
Wellcome Trust to further investigate ways in which the public would
distinguish between different types of commercial access, and whether
different types of data and data users would be factors influencing attitudes
towards commercial access to health data for the public. 61 In so doing, it is
hoped that better safeguards can be established to ensure public trust in the
sharing of health data with private entities for research purposes. The report
found that the public regards there to be a hierarchy of acceptable commercial
entities. For those private research companies working closely with the
National Health Service (‘NHS’) in the UK, the public has a relatively higher
trust and more acceptance attitude towards their data processing activities.62
Far less popular are pharmaceutical companies with agendas that are seen as
being at odds with the public interest. Even though the role of pharmaceutical
companies in the development of new therapies has been gradually
recognised, most people still prefer that certain kinds of regulations should be
used to place checks on these companies, due to concerns with their profit
motive.

In the survey, some companies are reported as falling short of public
expectations. For example, the investigation showed that participants do not
want insurance companies to have access to their health data at all. This
public distrust is caused by the health industry’s business operations:
charging high rates but paying out little or nothing, which is perceived by the
general public as operating contrary to the basic principle of the public health
service. 63 Similarly, marketing companies have also been listed as non-
favoured entities for access to personal data. This demonstrates the general
concerns about online marketing platforms’ privacy intrusions and how

61 See Ipsos MORI Social Research Institute, ‘The One-Way Mirror: Public attitudes to
commercial access to health data’ (Report prepared for the Wellcome Trust, March
2016) <https://www.ipsos.com/sites/default/files/publication/5200-03/sri-
wellcome-trust-commercial-access-to-health-data.pdf>.
62 Ibid 10. However, the extent to which this higher trust remains is not without
debate. On March 2017, for example, there was a devastating security breach of one
of the major computer systems used by GPs. This breach involved over 26 million
NHS patients’ medical records and triggered the Information Commissioner (ICO)
to start an investigation. At the end of August 2017, the ICO announced that the IT
system’s provider was required to address the need to improve security measures
to guarantee the fair and lawful process of patient data on the system. See
Information Commissioner’s Officer, ‘ICO updated statement in relation to the
potential risk to patient medical records held by GPs on TPP SystmOne’ (Media
Release, 30 August 2017) <https://ico.org.uk/about-the-ico/news-and-
events/news-and-blogs/2017/08/ico-updated-statement-in-relation-to-the-
potential-risk-to-patient-medical-records-held-by-gps-on-tpp-systmone/>.
63 Ibid 10–11.

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individuals might have been targeted for direct marketing through big data
application.64 With regards to third party access, the survey illustrates public
unease with passing data on to others beyond the original use, especially fear
that data subjects will lose control when third party access is allowed but
proper safeguards are yet to be established. 65 Indeed, commercial companies
frequently seek to profit from re-selling data. However, most of these
companies have inadequate mechanisms to ensure transparency and data
security.

As the GDPR adopts a broad definition of research and explicitly includes
privately funded research in such a category, the scientific research
exemptions will apply to commercial entities and pharmaceutical companies
for data processing and re-use. Mitigating public concern to ensure that the
common good is protected and to ease the challenges that accompany the
application of the scientific exemptions is crucial. In addition to relying on
ethics committee review as a safeguard mechanism for data access, it is
necessary to increase transparency and accountability in the governance
framework for processing data transfer and access applications. A proper
notification system may help build up a trust relationship between data
controllers and data subjects, and needs to be included in the overall data
flow supervision. Finally, in the broad consent mechanism, an opt-out option
is required so that data subjects will have an opportunity to further control
(even though passively) the use of, and access to, their data and to decide if
they would prefer to withdraw from research projects when commercial
entities are involved.

4.2 Designing a Compliance Framework for Research

In addition to the uncertain interpretation of the scope of exemptions, another
challenge for the GDPR lies in how to design an appropriate compliance
framework for carrying out research. A solid safeguard for data processing
requires suitable technical and organisational measures that can be well-
designed into an overall framework, to balance respect for privacy with the
need to perform research. Under certain circumstances, the GDPR allows for
Member States to set up implementing rules for the research exemption. As a
result, there is some (necessary) flexibility to apply the GDPR in medical and
health research contexts. However, the fragmented implementation rules
enacted by the Member States may inevitably bring new challenges to the
harmonisation of different data protection rules for research across the EU.
How to avoid this regulatory fragmentation, which will hinder data sharing

64 Ibid 11.
65 Ibid.

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and cross-border research collaboration, will be another crucial issue worth
taking into consideration.

In biomedical research, many codes of conduct, ethical standards, and self-
governance mechanisms have been developed over years to safeguard data
processing and facilitate collaboration of transnational research. A practicable
compliance framework for the GDPR should be built on these existing good
practices to avoid conflicts between the rules of data protection and
biomedical activities. The safeguard mechanisms, such as Privacy Impact
Assessments (‘PIAs’) for risk management and the requirements for
transparency and accountability must also be built in by design, as integral
parts of technical and organisational compliance safeguards. The adoption of
PIAs plays a crucial role in assessing the risks associated with research
projects and data processing and usage. It is worth noting that a PIA should
be performed according to the specific context. A PIA identifies and evaluates
related risks for data protection, and must consider not only physical security
for data storage and encryption methods, but also the data subject’s
expectations, access policies and the safeguards adopted by research institutes
and associated research partners. This assessment is particularly important if
data is transferred for further use or linkage.

Introducing a system of data breach notification may further improve
tracking of network data usage in real time and help monitor the data flow
accountably. It is recommended that the data protection authorities work
closely with research and health institutes to seek input from scientific
communities, to enable them to implement rules and meet the common goal
of supporting research while respecting the individual’s privacy. In addition,
even though the scientific exemptions under the GDPR permit re-consent to
be waived under certain circumstances when technical and organisational
safeguards are in place, it is important that advanced techniques of
encryption and data anonymisation should not be deemed an automatic
replacement of consent. Independent reviews from ethics committees must be
required to stick with a comprehensive governance framework in which a
contextual assessment of data protection impact and risk management have
been embedded.

Conclusion

The GDPR has been viewed as a milestone in data protection reform as it aims
to harmonise the existing fragmented data protection rules in Europe. Its
implementation in May 2018 will require widespread standardisation and
unification of data privacy requirements, and will have a broader impact on
cross-border data transfers. However, to what extent both the ambition for the
protection of consumers and the promotion of innovation can be achieved

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will be a challenge for the implementation of the GDPR. After a long process
of lobbying and debate, the derogations for research have been accepted by
policy makers in the EU, but the adoption of scientific exemptions remain
challenging under the GDPR.

This paper has discussed these challenges in the biobanking and biomedical
research context. It elucidated why dominant mechanisms such as specific
consent and anonymisation, as requested by privacy protection rules, may not
be appropriate for biomedical research, which generally is of a data intensive
nature, open to unspecific future research, and requires the linkage of
different datasets for longitudinal population-based research. The derogations
permitted under the GDPR allow for broad consent and processing of
sensitive data without considering if the secondary use is compatible with the
consent obtained for the initial data collection. Given the broad definition of
‘research’ adopted by the GDPR, these exemptions will question the proper
scope of the secondary use of data from privately funded research entities,
and further harmonisation of implementation rules enacted by each Member
State may be required. This paper suggested that a transparent and
accountable governance framework including privacy impact assessments,
notification and an opt-out option should be set up. The framework should
build upon the existing ethics review safeguards, which allow for scientific
research to meet the requirement of doing good science while benefitting
public interest.

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