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The Right to be Forgotten when contracting Credit and Insurance in Portugal

People who have overcome or mitigated situations of aggravated health risk or disability see their access to credit and insurance contracts reinforced

The Portuguese Parliament has recently amended Law 46/2006, of 28 August, as well as the Legal Regime of the Insurance Contract, with the aim of establishing the right to be forgotten for those who have overcome serious illnesses, such as cancer, HIV and diabetes, or disabilities.

With entry into force scheduled for 1 January 2022, the law now grants the right to be forgotten when contracting housing credit and consumer credit, as well as when contracting insurance (compulsory or optional) associated with these credits, by people who have overcome serious illnesses or who present a situation of mitigation related to this illness.

According to the law itself the aim is to “reinforce the access to credit and insurance contracts by people who have overcome or mitigated situations of aggravated health risk or disability by prohibiting discriminatory practices and considering the “right to be forgotten”.

Thus, with this legislative amendment it is now established that no health information may be collected in a pre-contractual context by credit institutions and insurers provided that:

  • Ten years have elapsed without interruption since the end of the therapeutic protocol, in the case of aggravated health risk or overcome disability or;
  • Five years have elapsed since the end of the therapeutic protocol, in the case of pathology overcome having occurred before the age of twenty-one; or
  • Two years of continuous and effective therapeutic protocol have lapsed, in the case of aggravated health risk or mitigated disability.

This law will also be applicable to “people who have overcome a situation of disability”, defining them as those who “have been proven to have been in a situation of disability equal to or greater than 60% and who have recovered their psychological, intellectual, physiological, anatomical structures or functions, reducing their incapacity below this threshold”. This right will also apply to “persons who have mitigated situations of aggravated health risk or disability”, i.e. who are undergoing treatments proven to significantly and durably limit the effects of their situation of aggravated health risk or disability.

In order to make the right to be forgotten effective, the Portuguese State intends to reach a national agreement with the various credit institutions and national insurance companies, as well as their representative entities, so as to clarify some aspects regarding the specific types of data that may be collected, how they may be processed and the medical and legal criteria that should govern the recognition of this right to contracting parties.

In order for pathologies already overcome by a potential policyholder or potential credit contractor not to be considered in the assessment that insurers or credit institutions make when contracting insurance or credit contracts, a strong adaptation will always be necessary, which, as far as everything indicates, will be conditioned to legal and medical guidance in this field.

It remains to be seen how, in practice, this right to be forgotten will be implemented by banks and insurance companies, in credit and insurance contracts in Portugal.

The content of this information does not constitute any specific legal advice; the latter can only be given when faced with a specific case. Please contact us for any further clarification or information deemed necessary in what concerns the application of the law.

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