In particular, this Article will ask whether the concept of sensitive data is and will remain fit for purpose. This article aims to analyze the evolution of the concept of sensitive data through past, contemporary, and potential future contexts. In recent times, the nature and use of sensitive data has been changing at a rapid pace. The concept of sensitive-or special categories of personal- Footnote 1 data has long been central to data protection frameworks. The authors propose a possible interpretative solution: A hybrid approach where a purpose-based definition acquires a bigger role in deciding whether data is sensitive, combined with a context-based ‘backstop’ based on reasonable foreseeability. This Article analyzes how such developments are likely to influence the concept of sensitive data and, in particular, its ability to protect vulnerable groups from harm. This creates various risks going forward, including an inflation effect whereby the concept loses its value, as well as the possibility that data controllers may increasingly seek to circumvent compliance with the requirements placed upon the use of sensitive data. Increases in computing power, more complex algorithms, and the availability of ever more potentially complimentary data online mean that more and more data can be considered of a sensitive nature. Second, the very nature of personal data is changing. It has introduced a number of requirements relating to sensitive data that are likely to represent added burdens for controllers who want to process personal data. This has been exemplified by the creation of the EU’s General Data Protection Regulation (GDPR) in Europe. First, the legal regime responsible for the regulation of the use of personal data has evolved considerably since the concept of sensitive data was first used. Such an exercise is important for two main reasons. This Article seeks to analyze the continued relevance of sensitive data in both contemporary and potential future contexts. The sui generis protection of sensitive data-stronger than the protection of non-sensitive personal data-can also seemingly be a necessity from a fundamental rights-based perspective, as indicated by human rights jurisprudence. As a result, data protection frameworks have traditionally foreseen a higher burden for the processing of sensitive data than other forms of data. Such risks are often perceived in terms of an elevated probability of discrimination, or related harms, to vulnerable groups in society. The concept itself is used to denote several categories of data for which processing is deemed to pose a higher risk for data subjects than other forms of data. The concept of sensitive data has been a mainstay of data protection for a number of decades.
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