The Data Protection Commission warns that schools must verify and demonstrate that the body temperature measurements they take on students, within the scope of covid-19, comply with legal data protection principles and rules.

In a note available on its website, the National Data Protection Commission (CNPD) emphasizes that temperature measurement was not recommended for educational establishments by the national health authority, “an entity to whom, due to its technical and scientific competences, the law assigns the competence to determine or recommend appropriate and necessary measures to guarantee public health “.

The commission says it was aware that, in the resumption of face-to-face classes last Monday, some educational establishments adopted the procedure of reading students’ body temperature.

In this sense, the Commission recalls that the reading of students’ body temperature, “regardless of whether or not the respective record is performed, constitutes a processing of personal data” and, therefore, educational establishments “have an obligation” to verify and demonstrate that the treatments they carry out comply with the principles and legal rules for the protection of personal data.

“In fact, body temperature is information related to an identified or identifiable natural person, and a collection and analysis operation is being carried out on it, so much so that, depending on the observed measurement result, a decision is made that affects the life of the student who holds the data: whether or not admission to the educational establishment he attends is permitted, and therefore whether he is prevented from attending and participating in face-to-face classes “, says the CNPD.

The legal diploma that regulates the resumption of classroom teaching activities does not provide for this treatment of personal data, says the CNPD, in the guidelines for educational establishments regarding the measurement of students’ body temperature, in the context of returning to classes and other teaching activities in person, regardless of education level.

According to CNPD, the decree-law only determines that educational establishments reorganise “school spaces, classes and schedules, in order to guarantee compliance with the guidelines of the General Directorate of Health, namely in terms of hygiene and physical distance. “.

“Nor do the guidelines and recommendations of the Directorate-General for Health, to which it refers, point to this measure as adequate and necessary to safeguard public health. In fact, regarding access to the school grounds, in the guidelines only the “duty to ensure that everyone is wearing a mask. Hand hygiene at the entrance and exit, with alcohol-based antiseptic solution, must also be taken care of”, specifies the commission.

CNPD indicates that educational establishments have regular autonomy, within which the student’s status can be defined.

However, the commission stresses, “the restriction of rights, freedoms and guarantees, such as the right to respect for private life and the right to the protection of personal data, can only occur by determination of law, which provides for appropriate and specific measures that safeguard the fundamental rights and interests of the data subjects, and therefore, under no circumstances can a regulation of an educational establishment introduce innovatively a restriction of those rights “.

The commission also stresses on the grounds of lawfulness for the processing of health data, that “consent, to be legally relevant, must be given under conditions that guarantee the freedom inherent in that manifestation”.

This, according to CNPD, assumes, “not only clear information about the conditions of the processing of personal data and the consequences of it, but also that this manifestation of explicit will is not conditioned or impaired by the possible repercussions (or by the threat of repercussions) that the refusal of its issuance may have “.

This means, says the commission, that the “declaration of will eventually manifested by the student, or by the guardian, is only relevant to justify the treatment if there is no threat or communication that the refusal to subject the body temperature reading procedure implies the negative consequence for the student of being prevented from entering a classroom and, therefore, of obtaining the necessary teachings for his preparation for the evaluation ”