Covid certificate to enter restaurants, transport and closed places: the doubts generated by the following digital measure to adapt to the pandemic
The Covid Digital Certificate is already required to travel in Europe, but countries like France, UK, Ireland O Austria have already taken the first steps so that also it is requested as a requirement to be able to enter restaurants, bars, trains and other closed places. A use that goes beyond the one initially proposed by the European Commission and that opens the door to multiple doubts.
Is it a discriminatory measure? How does it affect our privacy? Is it covered by the law to request the Covid Digital Certificate to enter the sites? We have consulted with different experts and here we show you their reflections. Now they are our European neighbors, but it is possible that in the future the government of Spain will also consider the use of this QR code to regulate the passage to the different sites.
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Without vaccine, you do not enter
Emmanuel Macron, French president, has announced that as of July 21, the Covid Digital Certificate will be necessary to enter public meetings of more than 50 people. But it doesn’t end here, well from august it will also be necessary to enter restaurants, bars and long-distance public transport.
France had already started applying for the Certificate beyond for cross-border travel, as in social or sporting events of more than 1,000 people, as well as in discos, it is already mandatory.
In summer, this QR code that shows if you are vaccinated or have had a PCR test, will be required in France to all those over 12 years of age as a measure to encourage vaccination.
As of August, the certificate will be mandatory in France for those over 12 years old who want to enter bars, restaurants, buses or planes. In addition to large events or discos, as it is now.
The measure of forcing to present the certificate will not have much effect for those who are vaccinated, but it will have much effect for those who do not have it. Macron opts for a kind of two-speed social rights.
We went from having it as an aid to travel to being indispensable on a day-to-day basis
The European Union states that European citizens enjoy the fundamental right to free movement And this also applies to the unvaccinated. However, precisely to reinforce security, this Covid Digital Certificate has been created that, although it is not a travel document by itself, it is necessary to facilitate mobility and avoid having to undergo tests, tests or quarantines.
The European Data Protection Regulation (RGPD) justifies the use of this certificate for “reasons of public interest in the field of public health, such as protection against serious cross-border threats to health. “Precisely this use of” cross-border threat “fits very well with its use at airports and travel controls.
But the RGPD itself also establishes a series of requirements where its use is justified. In the first place there is the principle of limitation of the purpose, where it is not used for other purposes and the data is not kept for longer than strictly necessary. In this direction, Eduard Blasi, coordinator of the health group in the Spanish Professional Association of Privacy (APEP), aim that “it is important to note that this certificate could hardly be extrapolated to other areas of” day to day “such as access to bars, restaurants or gyms, where the alternative could not be a PCR since it would clearly be disproportionate and, therefore, its use would be de facto discriminatory“.
The difference between using it in airports and to access bars or gyms is at the level of proportionality and to what extent there are options that are less intrusive to our privacy.
Another aspect to be analyzed is the principle of data minimization. That is, the data essential for the specific purpose must be processed. It would be necessary to discuss whether its use to enter bars or restaurants is justified. A debate where the different experts consulted do not agree and will foreseeably be the subject of debate among the judges.
“It is a question of proportionality, when there are no less intrusive options“, Explain Jorge Morell Ramos, expert in law and consultant in Legaltechies. “When you talk about private businesses, such as leisure activities and the like, it is already more difficult to justify legally that there are no less aggressive options at the level of privacy. Therein lies the problem.”
“Another case of technological solutionism”
Jorge Garcia Herrero, lawyer and Data Protection delegate, explains a story that illustrates the problem with requesting the certificate to access restaurants: “the data is like chanquete, the real problem with trying one is that after the first time, you always go to want more “.
“The worst thing about the Covid Digital Certificate is that it integrates a generalized control and discrimination tool in our lives, that it will not be easy to eliminate when the situation is controlled“, explains García.” It is a typical -but serious- case of technological solutionism, with its late legal review -with the project halfway through, nothing is known about the essential impact assessment on rights-, and its commercial-possibilist jargon : the CDC in fact, when used in normal situations -and not confinement or perimeter closure- limits movement, does not facilitate it“.
“If access to public transport, leisure and restaurants is already going to be conditioned and God knows what else, we are spreading – already in a totally unjustified way – the error, and providing access to data to uncontrolled third-party chains. And all this with the same theatrical and useless purpose that we already saw with last year’s famous temperature measurement: vaccination protects a lot against the disease, but does not prevent contagion: the vaccinated French who fill a restaurant with their CDC at the ready do not they are free to infect and become infected “, continues the Data Protection expert.
“In accordance with the foregoing (and with the jurisprudence of the ECHR) the limitation of rights would be more proportional and would be more justified if effectiveness were guaranteed: and it is not the case“explains García.” This control system should not be made general or permanent, because it will only be really useful for other purposes, not for the fight against COVID. For the purposes raised, a printable certificate on that reliable, affordable, and low-tech paper, linked to your CIF, which simply reflects the pass / fail, and the expiration period of the declaration, in the manner of the exams, should suffice. occupational doctors “.
Wojciech Wiewiórowski, EU Data Protection Supervisor, has qualified these certificates as “extreme”. “If some people cannot access or pay for tests or vaccines, they will not be able to prove their health. and, therefore, their freedoms will be de facto restricted “, points out Dr. Ana Beduschi of the University of Exeter in the United Kingdom and author of a report on the impact of these certificates.
Borja Adsuara, Doctor of Law and professor at Villanueva University, expresses his counterpoint: “It is discrimination, yes, but we have a wrong concept of discriminating, because it already has a pejorative concept. Discrimination is simply distinguishing, not all discrimination is unfair. A bank discriminates on risk or solvency. It is discrimination, but it can be justified at a time like the one we live in. ”
“Such discrimination helps people not continue to be infected. It is not infallible, but it helps, as is already done in airports or concerts,” says Adsuara. “At the moment it has not reached a point where everyone has access to the vaccine, but when that point is reached, it will be a discrimination against those who do not want to use it. It is self-defense for the rest.” Although, the expert points out that he does not believe that the obligation should be imposed.
“There is a middle ground between making it mandatory and forbidding employers to ask for it. There will be people who prefer to go and feel safer in places where access is controlled.”
“To say that you have the complete pattern, well you will carry it in your wallet like anything else. I don’t think it will be mandatory either, but it will be a way of ensuring the health of clients. There will be sites that ask for it and others that don’t, “argues Adsuara, who explains that to ask for the Covid Digital Certificate enters the debate on the right of admission.
“” There is a middle ground between making it mandatory and prohibiting employers from asking for it. There will be people who prefer to go and feel safer in places where access is controlled and it is known that people are vaccinated. Is a measure that can give air to the restoration“, says Adsuara, who, however, points out that something else different is for this information to be incorporated into a database.