The European Union has urged Member States to regulate in their national legislation a right to be forgotten to ensure that consumers are not discriminated against when taking out insurance on the grounds of previous illness, when a certain period of time has elapsed since the successful completion of treatment without recurrence.
This regulation should be transposed by 2025.
I. The concept of the right to be forgotten
a. General concept of the right to be forgotten. The protection of personal data.
First of all, we must point out that the concept of the right to be forgotten is a broad concept, with several ramifications that should not be confused with each other. Generally speaking, the right to be forgotten is usually referred to as part of data protection, which is a highly topical discipline in constant development and growth. As information technology has led to the incorporation of people’s personal data into search engines and databases of private companies, there is also growing concern among citizens, states and supranational organizations such as the European Union about the treatment given to this data, and the collision that occurs with fundamental rights such as privacy. Thus, the right to be forgotten is increasingly regulated as a general right to erasure, which allows citizens to request and obtain the removal of their personal data from databases and search engines held by corporations. In this sense, there is a European Data Protection Regulation that regulates this right to be forgotten in general terms, in Article 17. Spain has been a pioneer in European regulation in this area, as it was a complaint by a Spanish citizen that gave rise to the well-known Costeja v Google judgment, in which the Court of Justice of the European Union ruled that the search engine is responsible for processing personal data that appear on web pages published by third parties.
b. Specific concept in insurance. The right to be forgotten of cancer patients.
In particular, we refer today to the right to be forgotten in relation to the insurance industry, and specifically within the framework of the efforts being made in Europe, meaning both the European Union and other countries such as the United Kingdom, in the fight against cancer. Applied to cancer survivors, the right to be forgotten means that these people have the right not to be discriminated against when contracting financial and insurance products, especially life insurance, health insurance and credit insurance. In other words, after a certain period of time, which depends on each regulation and the particular statistics for each type of cancer, survivors can demand that insurers and banks do not discriminate against them, i.e. do not take their previous illness into account in the risk assessment they carry out prior to providing their services.
II. European regulation. Recent movements and the situation in Spain.
This issue is currently being addressed in the European Union as part of the review of the Consumer Credit Directive (CCD). As part of this review, and as part of the European Plan to Combat Cancer, the European Parliament has called for the introduction of a general regulation for the entire Union, with the aim of guaranteeing a European right to be forgotten, so that survivors of cancer and other infectious and non-infectious diseases cannot be disadvantaged in the prior assessment of risks when taking out insurance. Recently, on 16 February 2022, the European Parliament adopted Resolution 2020/2267 (INI), which aims at a comprehensive and coordinated strategy. According to this resolution, by 2025, all member states will have to ensure a right to be forgotten for cancer patients.
Currently, five EU member states have reflected this issue in their internal regulations. Briefly mentioning each of them, Portugal recently passed a law in 2021 that prevents the collection of therapeutic information beyond certain years ago, depending on the circumstances of the patient and the disease. France has recognized the right to be forgotten in healthcare since 2016. Belgium enacted in 2019 a rule amending the Insurance Contract Law, in force since February 2020, establishing the right to be forgotten of the patient when 10 years have passed since the end of successful treatment, without relapse. Luxembourg applies a similar rule also since January 2020, with a reduced period of five years for patients diagnosed before the age of 18. The Netherlands has also adopted the 10-year period since the end of treatment under a Decree of 2 November 2020.
In the case of Spain, the change in domestic legislation to reflect this European trend has been slower, and currently the decisions of the Commission and the European Parliament have not yet borne fruit in a national regulation that includes the right to be forgotten for surviving patients, in similar terms to the aforementioned member states. Thus, the only regulatory change made to date has been the one introduced by Law 4/2018, which added a Fifth Final Provision to the Insurance Contract Law, indicating that persons with HIV/AIDS “or other health conditions, unless justified by proportionate and reasonable causes, which are previously and objectively documented”, may not be discriminated against in the contracting of insurance policies.
Obviously, this provision is not an exhaustive transposition of European decisions on the matter, at the level of the other member states mentioned. Thus, the European Commission has drawn up a report in which it concludes that Spain has not developed a government policy on this issue. This 5th Final Provision limits itself to prohibiting discrimination on the grounds of HIV/AIDS and “other conditions”, but does not say which ones, does not establish a patient’s right to be forgotten as such, does not establish a period of time from the end of treatment without recurrence for the exercise of this right to be forgotten, does not indicate the measures that guarantee that discrimination in contracting is avoided and, above all, does not explain what is meant by proportionate and reasonable causes, that are previously and objectively documented. Therefore, we can affirm that, to date, Spain has not incorporated this regulation into its domestic law to the extent that other member states mentioned above have done, and that it is to be expected that by 2025 we will see legislative activity in this regard.
III. The position of the insurance industry.
Evidently, from the insurance companies’ point of view, there is great mistrust towards this legislative activity, which seems inexorably directed towards increasingly strict regulation, placing growing limits on the prior information that companies can collect when assessing risks, previous to contracting. The most common arguments of the insurers are that insurance is a system of risk collectivization, and for this reason it is necessary to collect this prior information, which in reality benefits all those involved in the insurance. They point out that this regulation could, in practice, lead to an increase in premiums to unpredictable levels. Such limitations could become inequitable, as premiums are determined not only from the point of view of the individual consumer, but of a wider group of consumers whose risks are pooled.
What is being asked of the EU can be summed up in one word: “flexibility”. Industry is looking for sufficient flexibility in regulation, essentially in three ways:
(i) to take into account the differences in the various types of cancer and the risk factors associated with each,
(ii) to allow for variations to meet the different characteristics and needs of different countries and markets, and
(iii) preserve the ability of insurers to determine premiums and benefits individually according to the risk factors involved.
IV. Other forms of discrimination in insurance underwriting.
In addition to prior illness, there are other circumstances that have traditionally been denounced by consumers as causes of discrimination in the contracting of insurance, to which we will make a brief reference:
(i) Age: the question arises as to whether it is lawful to impose more onerous conditions, or to exclude people from certain cover or from the insurance itself on the grounds of their age. In today’s market, given the progressive ageing of the population, more and more benefits are being offered to older people. Legislation seeks to avoid penalizing these consumers in the purchase of insurance products, but the industry draws attention to the fact that certain risks increase greatly with age, and companies should be allowed to take this into account in determining premiums.
(ii) Gender: The famous Test-Achats CJEU in 2011 obliged Member States to require premiums and benefits to be equal for both sexes by 21 December 2012, although consumers say there is still room for improvement on this point to ensure full equality.
(iii) Disability: The Law of 1 August 2011 has introduced a Fourth Additional Provision to the Insurance Contract Law, which prohibits discrimination of persons in insurance contracts on the grounds of disability, in much the same way as the aforementioned Fifth Additional Provision does in relation to HIV.
In summary, we can affirm that we find ourselves in a European scenario in which the right to be forgotten is going to be increasingly regulated. In the insurance field, the right to be forgotten is of particular importance in relation to non-discrimination in insurance contracts on the grounds of previous illness, especially within the framework of the European Plan to Combat Cancer. The Commission and the European Parliament want this right to be gradually incorporated into the legislation of the Member States that have not yet transposed it, all of them guaranteeing by 2025 the impossibility of collecting data for risk assessment beyond the 10 years prior to the successful completion of treatment without recurrence.
For its part, the insurance community considers that it is desirable for the regulation to allow greater flexibility, allowing a wider margin of maneuver according to the circumstances of each disease, contracting party and national market, as otherwise it could produce a counterproductive effect of increased premiums.
In any case, from the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyze and defend your problem in matters of civil liability and insurance in the most professional and efficient manner.
Author: Adrián Macías Catalina
Departamento de Derecho del Seguro
Belzuz Abogados – Madrid