Article 9 exceptions - the ten conditions
Article 9's prohibition is lifted by ten conditions. The headline ones: explicit consent (more than ordinary consent); employment/social-security law; vital interests where the subject cannot consent; not-for-profit bodies (political/religious/union) processing members' data; data manifestly made public by the subject; legal claims or courts acting judicially; substantial public interest; preventive/occupational medicine and health/social care; public health; and archiving/research/statistics under Article 89(1). Several require EU or member-state law.
| Exception | Key feature / gotcha |
|---|---|
| (a) Explicit consent | Must be explicit - an express statement; member-state law may bar even consent from lifting the ban |
| (b) Employment & social security/protection law | Authorised by EU/member-state law or collective agreement; candidates, employees, contractors |
| (c) Vital interests | Only where the subject is physically or legally incapable of giving consent |
| (d) Not-for-profit bodies | Political/philosophical/religious/union bodies; members or regular contacts only; no external disclosure without consent |
| (e) Manifestly made public | Subject deliberately made it public; other principles still apply |
| (f) Legal claims / courts | Establishment, exercise or defence of legal claims, or courts acting judicially; needs necessity |
| (g) Substantial public interest | On EU/member-state law; must be proportionate and respect the essence of the right |
| (h) Preventive/occupational medicine & health/social care | Includes assessing an employee's working capacity; needs an obligation of professional secrecy |
| (i) Public health | E.g. serious cross-border health threats; safeguards incl. professional secrecy; must not flow to employers/insurers |
| (j) Archiving/research/statistics | Under Article 89(1) safeguards; proportionate; data minimisation, maybe pseudonymisation |
Article 9 explicit consent still must be unambiguous, freely given, specific and informed, but additionally explicit - an express statement (e.g. filling an electronic form, e-signature, confirmatory email, two-stage verification). It is more than the clear affirmative action sufficient under Article 6.