Insurance and the ″right to be forgotten″
We often hear and read that data is the new oil.
Effectively, information related to our behavior, purchases, travel, medical treatment is provided in the event of important data for the exercise of the activity of some sectors, such as the insurance sector.
It has probably happened that you have provided personal information before entering into an insurance contract. As a rule, in the initial risk statement we are asked for a range of information, including, for example, related to pre-existing health problems, as provided for in article 24 of the legal regime of the insurance contract (RJCS).
Before the entry into force of Law n.º 75/2021 of 18 November, it was common for a person who suffered an oncological disease to have difficulties in accessing health or life insurance due to the risk it represented.
This is because, this is due to, several times, the issuance of policies with this foundation and the granting of insurance, as foundations, probably ignored and refused, several times, which led to situations of injustice and discrimination.
Therefore, it came to be called the “right to be forgotten” for those who have overcome or mitigated situations of health risk or disability, reinforcing and improving, increasing their mortgage for consumption and associated insurance contracts.
Pursuant to article 2 of Law n.º 75/2021 of 18 again, this “right” covers people who were demonstrably at risk of health and who are no longer in this situation (the concept of aggravated risk situation is provided for in article 3 c) of Law 46/2006, of 28 August); as people who have been proven to have a disability equal to or greater than 60% and their psychological, intellectual, structural or anatomical functions are lower, improving their disability from that threshold; and, finally, as people who are suitable for proven treatments that have been proven capable of significantly limiting the effects of their situation of worsening health or disability.
By virtue of this law, such as diseases that can be prohibited to someone who has it, diabetes is already prohibited to anyone who has cancer, diabetes is the practice of anyone who can be discriminatory.
More specifically, compliant, note that this diploma amended RJ Law No. 46/2006 of 28 August, expressly consecrating the punishment of discrimination based on disability and/or the existence of an aggravated health risk, which constitutes an administrative offense sanctioned with fine, without prejudice to any civil liability.
The chosen under that these people cannot guarantee the right to health or the guarantee exclusion of insurance contracts, that these people cannot guarantee the health right or the guarantee exclusion of insurance contracts, but can also guarantee that the information regarding the risk or deficiency situation can be guaranteed by credit institutions or bound, in a pre-contractual context, to the limits provided for in article 3 law.
It is evident that nº 752021 will have in the conditions / in the insurance what is done in the hiring of an evident that meets the above mentioned conditions. The Portuguese League against Cancer even pointed out that this law is a reparation of justice for cancer survivors.
Law nº 2025/2025, being foreseen for the existence of difficulties in the adoption of security, mainly, without the same respect to the security information adopted pre-January 7th and implementation as the same security requirements pre-January 7th, 2022 being certain that the indeterminacy of some of the studies foreseen in it will contribute to this difficulty.
Our understanding, for an implementation of this new diploma, it will be essential to define specific categories of data that can be chosen as standard and information that will be well defined as protocols for its processing.
For what will be necessary and readjustments to the analysis of configurations and procedures, and choice of insurance contracts, which will certainly have a procedure of risks, information and pre-contractual and contractual procedures of current operations.
References: Law No. 75/2021 – DR No. 224/2021, Series I of 11.18.2021; Law No. 46/2006 – DR No. 165/2006, Series I of 08.28.2006; Decree-Law No. 72/2008 – DR No. 75/2008, Series I of 04.16.2008
Paulo Cruz Almeida, partner at Kennedys, and Marta Primitivo Oliveira, lawyer at Kennedys
