Reuters exclusive in CJEU: Witnesses disclose insightful and sensitive information about the NHSX-Case

ST.GALLEN (Reuters) - Reuters got a brief insight into the Court of Justice of the European Union (CJEU) during the last session of the day at the SGMUN Conference 2020 yesterday.

What is the case all about?

The case discussed before the CJEU features a dispute arising in the context of implementation of an EU regulation respectively directive that came into force before the Brexit date earlier this year. The specific legal context contains the introduction of a COVID-19 tracing app by the United Kingdom that potentially violates EU data protection law. While the Commission has claimed that the tracing app by the UK is failing the test of necessity in terms of adapting to the GDPR regulations, the UK on the other hand has claimed that its application is in fact in full compliance with the GDPR regulations as the collected data are being store under full pseudonymization. Although the download of the app is generally voluntary as a British citizen, as a non-British citizen one is obliged to download and use the app as soon as entering the British territory.

What happened in court yesterday?

At the beginning of yesterday’s session, the intermediary statements made by the representatives of the UK and the Commission, summarizing the results of the evidence presentation of this Friday, took place. Followed with a very insightful witness hearing of four witnesses.

Who are the witnesses and what has been testified?

Chris Drowsting is one of the most prominent virologist in the UK and has testified that the situation in the UK is very critical at the moment with the current COVID-19 pandemic especially with continuously increasing cases. Drowsting is a champion of the NHSX Application and is saying that he expects the app to have a good effect as a decisively important tool to keep infection numbers down within the UK. After all, speed is the most important factor when searching for contacts of an infected person. According to Drowsting, important time can be lost if people first must be tracked down by calling them instead of receiving an alert on the app. Herd immunity and widespread contact tracing is the only way to condemn the spread of COVID-19 in the UK, according to him. In general, the witness has spoken in favor of the contact tracing app, but not specifically the kind of contact tracing app that has been developed by the UK app.

Ms. Patel is a former worker of NHSX who was involved in the development of the app but left NHSX due to concerns about the low data protection. Tara Patel is the Former Chief Pseudonymisation Officer at NHSX. This is the person that was responsible for anonymising personal data coming from the UK CT App until early June. She quit the job after having realized the deficiency of the pseudonymisation standards of the UK CT App. These low standards had been imposed by the senior managers of the NHS for a reason that she never found out. She realised that it would have been very easy for ill-intentioned hackers or government officials to have access to users' personal data, de-pseudonymised it and use it to learn information about the users. The reason why she never spoke about the problem before the trial was that she was told by the NHS's human resources department that disclosing information to the public would have led to serious consequences for her after leaving the job.

Dr. Jo Nettersworth is the CEO of NHSX. Nettersworth has the strategic responsibility for setting the national direction on technology across all NHS affiliated organisations. The unit works closely with the Government Digital Service and other central government functions to learn from their experiences and ensure there is continued alignment with the Digital, Data and Technology profession across the UK government. Furthermore, he is seen as an expert on GDPR and privacy protection law. Nettersworth has defended the application developed by the UK. Location tracing next to Bluetooth has been shown as very effective to minimize the spread of the virus.

Hans-Jürgen Rösner, a German national, has been living in the UK for 4 years. In his testimony, he has underlined his successful efforts were made to integrate himself into British society. With the UK CT App, he felt very discriminated as a non-British citizen. As none of his British friends have an obligation to download the app in particular. Furthermore, he is underlined how responsible he has been as a citizen by always wearing a mask in public, wishing his hands several times a day, and only leaving his house for necessity, whereas friends who are British citizen have joined illegal “rave parties” whilst being in a pandemic. As in fact, since they as British citizen are not obliged to download the app, their “raves” will not get caught, whereas Rösner would never do such “raving” activities.

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