The right to be forgotten – European solutions
In February 2022, the European Parliament called on EU member states to regulate the right to be forgotten by the end of 2025. In principle, the amendments to national laws are intended to prevent discrimination against policyholders with pre-existing cancer when a certain period of time has elapsed since the successful completion of treatment without recurrence.
This article summarizes the steps taken in selected European countries, as of the end of 2022.
The concept of the right to be forgotten.
Tthe concept of the right to be forgotten is one that has several ramifications that should not be confused with each other. The right to be forgotten is usually understood as part of data protection. It then means the general right to delete personal data from databases. However, when it comes to the insurance industry, the right to be forgotten is talked about in the context of patients with chronic illnesses. In this case, the term means the right to non-discrimination in contracting for financial and insurance products, especially life, health and credit insurance. In other words, after a certain period of time, which depends on individual regulations and statistics, survivors can demand that insurers and banks disregard their pre-existing illness when assessing risk before providing services.
AUSTRIA
The Austrian legislature has not yet regulated the “right to be forgotten.” Currently, when entering into a contract, the policyholder must notify the insurer of all circumstances that are relevant to the assumption of risk, i.e., those that may affect the insurer’s decision to enter into a contract or its terms. All circumstances the insurer asks about, including those related to diagnosis or treatment, are also considered relevant. Based on the answers, the insurer is entitled to withdraw from the insurance contract.
BELGIUM
Belgium has introduced a “right to be forgotten” for some insurance as early as 2019. The regulations were modified again in 2022.
From 2022, cancer data can be removed from insurance documents 8 years after recovery, from 2025 this period will be reduced to 5 years.
FRANCE
France was the first country in the world to introduce the “right to be forgotten” in the insurance legislation. The standard period after which the data of cancer patients were deleted from insurance documents was 5 years, but it was subject to a number of conditions, applicable to various types of insurance. One example was mortgage insurance and its quota limitation for a group of post-cancer customers. France has the AERAS Convention, which is a national agreement between stakeholders, including insurers and credit institutions (www.aeras-infos.fr). For those who are not covered by the “right to be forgotten,” the AERAS convention (S’Assurer et Emprunter avec un Risque Aggrave de Sante/ Insuring and Loaning with Aggravated Health Risk) establishes a reference grid to facilitate access to credit insurance for a certain number of listed pathologies, whether due to cancer or other diseases. All types of cancer (regardless of location and histological type) and hepatitis C are included in this reference group. The goal is to promote access to insurance for people whose health condition does not allow them to obtain coverage under standard conditions, i.e. without increasing rates or excluding coverage. French law additionally provides for the withdrawal of the medical questionnaire in certain circumstances such as consumer loans, where the maximum amount of credit possible without a health questionnaire is €17,000, and in the case of a real estate loan under €200,000.
IRELAND
Legislative work has begun in Ireland to incorporate the EU recommendations into national legislation. The bill, dated 18 October 2022, proposes to introduce a definition of “cancer survivor.” This is any person who has been diagnosed with cancer and has not required treatment for a continuous period of at least 5 years due to the diagnosis. A five-year forgetting period has also been proposed regardless of the patient’s age at diagnosis. The indicated draft, at the stage of its introduction and discussion, did not clearly distinguish between different types or stages of the disease.
ITALY
Italy has not yet introduced legislation on the right to be forgotten. The Italian Association of Medical Oncology (AIOM) has launched a campaign to turn an EU recommendation into a bill that a cancer patient is considered “cured” when they reach the same life expectancy as the general population. The time varies for different cancers: it is less than 5 years for thyroid cancer, less than 10 years for colorectal cancer and melanoma, more than 15 years for bladder and kidney cancer, non-Hodgkin’s lymphomas, myelomas and leukemias, especially the chronic varieties, and about 20 years for some common cancers, such as breast and prostate cancers, because the risk of disease recurrence, although small, persists for a very long time.
LUXEMBOURG
In Luxembourg, too, the EU recommendations have not yet been implemented, but in practice, for adults, past cancer data is removed from their records 10 years after the end of treatment, and for children after five years.
THE NETHERLANDS
The Netherlands has an Ordinance dated 2 November 2020, containing rules for conducting insurance examinations of former cancer patients for life and funeral insurance. It shows that cancer data against adults is deleted after 7 years from the date of completion of treatment, and for those under 21 the period is shorter at 5 years.
PORTUGAL AND SPAIN
Portugal already has a law in place to bring the regulations in line with EU recommendations. For adults, past cancer data is removed from their data 10 years after the end of treatment, and for children and adults under 21, after 5 years.
In Spain, the EU recommendations have still not been implemented, but there are now two additional provisions added to the Insurance Contract Law, covering the prohibition of discrimination based on disability, HIV/AIDS and “other diseases.” However, these are general provisions that are interpreted as mere declarations of intent, with no real meaning when contracting financial and insurance products. Before the end of 2025, there will probably be a change in this regard.
SUMMARY
As can be seen from the above material, few member states have implemented the EU recommendations on the right to be forgotten. Most insurance markets, however, have developed practices in this respect that they currently use. Undoubtedly, all national legislators should immediately undertake the creation of legislation, at which dialogue with the insurance market and its participants seems crucial. Legislative solutions must be an emanation of the principle of non-discrimination, while respecting the rights of insurers to assess risk when offering and concluding policies. We look forward to the proposals of the Polish legislator in the above regard.
SUMMARY TABLE
1. The meaning of the term “right to be forgotten” in insurance law.
2. The European Parliament in 2022 urged EU member states to regulate the right to be forgotten by the end of 2025
3. For the purpose of the article, using the knowledge of experts from other countries, the regulations in force in various European countries were compared
4. Most countries have not yet adapted legislation to the European Parliament’s recommendations.
As shown in the overview, most of the analyzed EU countries have not yet introduced target solutions in the discussed area, but nevertheless some work on their adaptation to EU requirements has already begun. The Polish legislator’s proposals in this regard are not yet known.
