On 12 January 2021, new measures to limit the spread of COVID-19 were adopted via a ministerial decree in Belgium. Article 8 of the decree allows the National Social Security Office (ONSS) to trace workers using data-mining and data-matching technology. The decree gives way to large-scale processing of sensitive health data, collected by the National Public Health Institute Sciensano throughout the pandemic.

Secret, undemocratic passage

The Belgian League of Human Rights (Ligue des droits humains, LDH) decided to challenge the decree before the Council of State. It argues that the formulation of the decree is too broad and does not limit the data processing to social security services but to a wide range of other authorities, including the police. Although the decree is only temporary, the LDH is worried that it will survive the pandemic.

The LDH has criticized the fact that the decree was passed secretly without a democratic debate. Unlike the adoption of laws, ministerial decrees do not require a public debate, consultation with public authorities and exchanges with experts, such as the Council of State or the national Data Protection Authority. It also does not attract as much publicity. The LDH thus pleads the Parliament to take up and debate the issue, as it should in a democracy.

Three objectives

The complaint has three main objectives. First, the LDH wants the executive power to respect basic democratic processes. Second, it wants to highlight the importance of respecting constitutional and international standards when authorities collect sensitive data. Third, the LDH wants that the legal framework that regulates the collection of health data is respected.

The LDH also points out that it should be the role of the national data protection authority (APD) to protect Belgian citizen’s personal data, and not the League’s. The APD has been subject to much criticism this year. It was recently dubbed “a watchdog which does not bite” in one of Belgium’s main newspapers and faces accusations of conflict of interest.

LDH’s complaint is part of a series of litigations on Covid-related technologies conducted by Liberties and Liberties’ members. The project aims to prevent European governments from using the pandemic as a pretext to normalise the use of invasive digital surveillance technologies. It is funded by the Digital Freedom Fund.