Data protection and insurance : the limits on the collection and use of personal data on insurance contracts in EU law
Title: Data protection and insurance : the limits on the collection and use of personal data on insurance contracts in EU law
Author: VIOLA DE AZEVEDO CUNHA, Mario
Citation: Global jurist, 2010, Vol. 10, No. 1, Article 6, OnlineOnly
Insurance and privacy are two important issues in our society. Insurance, in the way that we know it nowadays, had its origin in the 14th century, in Genoa, where one of the first legislative initiatives took place. Since then, insurance has become more important in the international scenario, becoming one of the main guarantees for trade and industry. It has played a fundamental role in the maintenance of individual property, in the preservation of family and in the preservation of health. However, the need to protect the right to privacy started to be discussed only at the end of the 19th century, after the publication of the famous article “The Right to Privacy," written by Louis Brandeis and Samuel Warren. In this article the authors recognize the need to protect privacy, but they do not take into account the protection of personal data, which started to be discussed only in the second half of the 20th century. Since “the right to be let alone," the right to privacy acquired a much larger and protective scope than the one thought by those authors. This enlargement of the scope of privacy is confirmed by the Charter of Fundamental Rights of the European Union, which recognizes, in its article 8, the right to the protection of personal data as an autonomous right, demonstrating its importance for our society. Moreover, the advance of information technologies, biomedicine, and genetic engineering in the last decades has led to discussions about the necessity to protect genetic data with the objective of preventing discrimination, since specific genetic exams can accurately determine whether a person will develop a certain disease. These new forms of identifying individuals and of collecting their personal data have enormous relevance for insurance contracts, since the main element of the insurance is risk, and, for that reason, insurers collect and use information about individuals to analyze the risk they represent and to establish premiums. Taking into account this close relationship between insurance, privacy and new technologies, this paper aims to establish the limits on collection and use of personal data on risk analysis and insurance underwriting in EU Law, using as a method the analysis of the EU Directives concerning data protection, specially the Directive 95/46/EC and the recommendations of the Article 29 Working Party, together with a bibliographic review of the European and international doctrine about the subject.
Published online 26 Jan 2010
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