13. 7. 2020
Chapter four of the Act on Intervention Measures for Preparation for the Second Wave COVID-19 (ZIUPDV) regulates the mobile application for informing about contacts with those infected with the SARS-CoV-2 virus and persons who have been ordered quarantine (mobile application). The law lists several purposes of the mobile application, from protecting human health and life, informing mobile application users that there is a risk of becoming infected with the SARS-CoV-2 virus due to the fact that they were in the vicinity of another user of this mobile application who was positive for SARS-CoV-2 virus or was quarantined or self-isolated, making users aware and making recommendations. The ministry for public administration is responsible for the establishment and operation of the mobile application, and according to Minister Boštjan Koritnik
, it will be based on an open source solution and be public. The Minister responsible for public administration will also announce the date of establishment of the mobile application.
The installation of the application is mandatory for users of a suitable smartphone, if they are confirmed to be positive for SARS-CoV-2 virus or if they have been quarantined.
The mobile application will collect data on contacts between users of the mobile application, with the distance and duration of contacts between users on the basis of which the mobile application records contacts prescribed by the minister responsible for health, based on the National Institute of Public Health (NIJZ).
The mobile application must not allow the user to be identified, to collect information about his location and his other personal data. Nevertheless, the question arises as to whether the processing of data is still unauthorized processing. For example, the person to whom quarantine will be ordered will be given a random code to enter into the application. However, since the connection between the code and this person exists (since otherwise the person could not get the code), we are talking about the processing of personal data or we cannot talk about the "anonymous mandatory use" of the mobile application. As the Legislative Service of the National Assembly points out, for example, it is not possible to verify whether a person has complied with the provision on the mandatory installation of a mobile application without processing his personal data. According to the position of the Legislative and Legal Service of the National Assembly, the anonymity of the installation or use of the mobile application will not be secured.
In order to establish and operate the mobile application, persons in self-isolation are also mentioned. However, the articles governing the mandatory installation of the application or the entry of random single-use codes do not list these persons, but list persons who have been quarantined in addition to the ones who are sick. With regard to self-isolation, the Legislative and Legal Service pointed out that it was not legally regulated or that there was no legal basis for it in the Infectious Diseases Act (ZNB). Both are ordered by a decision, and self-isolation following a doctor's recommendation has no legal effect and is therefore not a measure that can be ordered and can restrict an individual's freedom of movement.)
The installation and use of the mobile application are, in principle, voluntary, but the ZIUPDV also determines the cases when installation and use are mandatory. Violation of the provision on compulsory installation is a misdemeanour, which according to Article 47 of the ZIUPDV is punishable by a fine of 100.00 to 600.00 EUR.
The mandatory installation of a mobile application and the processing of personal data in public provoke the most controversy, which is why we can soon expect a constitutional review of the fourth chapter of the ZIUPDV. The controversial provisions were also pointed out by the Legislative and Legal Service of the National Assembly. In the opinion of this service, the regulation from the fourth chapter of the ZIUPDV is not legislated sufficiently in the part in which it refers to the obligation to install (the provisions of this chapter are not sufficiently precise, clear and exhaustive) and consequently unconstitutional. Furthermore, the said service doubts that this is an appropriate measure to achieve the permissible objective of health protection.
The Legislative and Legal Service of the National Assembly draws attention to the vagueness of the concept of "suitable smartphone" and to inadmissible discrimination as a result of differentiating persons on the basis of the use of "suitable smartphone".
In addition to owning or using a smartphone, the Legislative and Legal Service draws attention to other, completely practical aspects. There is a question of the potential threat to the health of people who may be harmed by the use of contactless technologies (for example, heart patients with pacemakers and Bluetooth technology) and the provision of Internet access (Wi-Fi or data transfer) and turning on the Bluetooth signal on the phone.
The duration of the measure for mandatory installation of the mobile application is also disputable, as the measure is revoked by the Government and not the National Assembly, but there is no specific period in which it should do so (and the measure can last incomprehensibly long).
Until a different decision is made, either in the National Assembly or by the Constitutional Court, the installation of the mobile application will be mandatory for the above-mentioned persons, and a violation of this obligation will be punished by a fine. However, soon after the entry into force of the Act (and before the possibility of the actual use of the application, which currently does not even exist), we can expect initiatives for the constitutional review of this part of ZIUPDV, including proposals to suspend the implementation of the law in this part. We will continue to keep you informed about developments in this area.
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Law office Fabiani, Petrovič, Jeraj, Rejc d.o.o.