At Belzuz Abogados, as experts in Insurance Law, we pay special attention to the latest legislative developments, both national and international, in insurance matters, always trying to be constantly updated and trained.
The regulation of the right to be forgotten in the contracting of financial and insurance products is a hot topic in recent times. A few months ago, we published an article on this subject on this website, reporting on the general regulation in different European countries and the European Parliament's call to incorporate this right into the domestic legislation of member states before 2025. Currently, we can affirm that Spain has joined the list of countries that recognise the so-called "oncological right to be forgotten" in their legislation, following the entry into force of Royal Decree-Law 5/2023.
Brief introduction to the concept of the right to be forgotten in its different aspects.
The right to be forgotten is a broad concept with points of connection with very diverse branches of law. The right to be forgotten has been discussed at length as part of data protection, being understood as part of the traditionally called "ARCO rights" (access, rectification, cancellation or data erasure and opposition), essentially identified with cancellation, understood as the right of any person to request and obtain the deletion of their personal data from the different search engines and databases. This right is widely recognised and regulated at national and European level, with the latest legislative amendments dating from 2016 (date of publication of the latest General Data Protection Regulation and 2018 (date of publication of the most recent Organic Law on this matter in our country).
On the other hand, focusing on the insurance sector, which is the branch of law in which this department provides its services, we are particularly interested in the right to be forgotten in its "oncological" aspect. Thus, it can be understood as the right of people who have suffered from cancer (although we have also broadly spoken of the right to be forgotten of people who have suffered from other illnesses) to not suffer discrimination when contracting insurance or financial products, when a specific period of time has elapsed since the end of the treatment with a positive result, that is, without a subsequent relapse. In other words, people who have successfully overcome cancer years ago should not be discriminated against by insurance companies or providers of other financial services on the grounds that they have already overcome this health condition.
Within the European Union, the Community legislator has for some time shown a willingness to guarantee the elimination of possible discriminatory conduct on the grounds of health or medical history, an intention that was clearly reflected in the Consumer Credit Directive ("CCD") and in the European Plan to Combat Cancer. Within this framework of activity, both political and regulatory, the European Parliament in February 2022 urged member states to incorporate the right to be forgotten in their national legislation by 2025.
As we noted in our previous article in October 2022, only five member states had made progress in regulating in line with the European Parliament's Resolution by that date: Portugal, France, Belgium, Luxembourg, and the Netherlands. However, we predicted that it was foreseeable that we would see changes in Spanish legislation in the medium term, considering that the parliamentary mandate set a deadline for regulation: 2025.
It was also recalled that Law 4/2018 had added a 5th Additional Provision to the Insurance Contract Law prohibiting discrimination in the contracting of insurance for persons who had suffered AIDS/HIV or other health conditions, indicating that it was foreseeable that oncological oblivion would be incorporated into Spanish law through the inclusion of a provision similar to this one in the Insurance Contract Law, or the modification of the existing one.
Spanish regulation. Comparison with other European countries.
As was to be expected, some time before the expiry of the deadline set by the European Parliament Resolution, Spain has incorporated the recognition and regulation of this right into its national legislation. The Government has opted for a Decree-Law to make a series of amendments to the Insurance Contract Law. Thus, Decree-Law 5/2023, of 28 June, contains a series of legislative reforms of a very diverse nature, of interest for the matter in question being article 209 of the same, which establishes two modifications to the Insurance Contract Law.
Firstly, a new paragraph is included at the end of Article 10:
"The policyholder of a life insurance policy is not obliged to declare whether he/she or the insured has suffered from cancer once five years have passed since the end of the radical treatment without subsequent relapse. Once the aforementioned period has elapsed, the insurer cannot consider the existence of oncological antecedents for the purposes of taking out the insurance policy, and any discrimination or restriction to taking out the policy for this reason is prohibited".
Secondly, new sections 2 and 3 are introduced in the aforementioned 5th Additional Provision, which prohibited discrimination on the grounds of HIV/AIDS, with the following wording:
"2. Under no circumstances may access to contracting be denied, contracting procedures be established that are different from those normally used by the insurer, more onerous conditions be imposed or in any other way discriminate against a person for having suffered an oncological pathology, once five years have elapsed since the end of the radical treatment without subsequent relapse.
3. The Government, by Royal Decree, may modify the time limits established in the previous section and in the last paragraph of article 10 jointly or for specific oncological pathologies, depending on the evolution of scientific evidence".
In other words, the oncological right to be forgotten is expressly recognised, opting for a period of five years from the end of treatment without subsequent recurrence, as a limit to prevent the insurer from taking this clinical history into account when setting the possibility and conditions of access to an insurance product. On the other hand, the possibility is expressly reserved to the Government to modify this period, by means of a Royal Decree, for specific pathologies according to their particular characteristics and the advances in science and technology.
It should also be noted that Article 210 of Royal Decree-Law 5/2023 has introduced new paragraphs 2 and 3 in the Additional Provision of the General Law for the Defence of Consumers and Users ("LGDCU"), with the following wording:
"2. Those clauses, stipulations, conditions or agreements that exclude one of the parties for having suffered from cancer before the date of signing the contract or legal business, once five years have elapsed since the end of the radical treatment without subsequent relapse, shall be null and void. To this effect, prior to the signing of a consumer contract, regardless of the sector, the consumer may not be asked for oncological information once five years have elapsed since the end of the radical treatment without subsequent relapse. The waiver of this provision by the party who has suffered from cancer in the above cases shall also be null and void.
3. The Government, by Royal Decree, may modify the time periods established in this provision, either jointly or for specific oncological pathologies, depending on the evolution of scientific evidence".
Consequently, the new regulation expressly recognises the oncological right to be forgotten, establishing a period of five years from the end of treatment without relapse so that the insurer cannot take into account the clinical history when determining access to an insurance product. Spain thus joins the countries that had previously regulated this right in their domestic legislation, and does so in a forceful manner, taking into account that the European Parliament had spoken of a period of ten years from the end of successful treatment, a period that was included in the legislation of Belgium, Luxembourg and the Netherlands, for example. Luxembourg had recognised a reduced period of five years, but only for patients diagnosed before the age of 18, so it can be said that Spain not only complies with the European Parliament's resolution, but also goes beyond the resolution regarding the regulation of time limits.
Conclusions
By means of Royal Decree-Law 5/2023, of 28 June, our country has complied with the European Parliament Resolution that urged member states to incorporate the right to be forgotten in their national legislation. This expressly recognises the right of consumers to have insurance companies not take into account their oncological history when determining access and the conditions for contracting insurance, once five years have passed since the successful completion of treatment, without relapse. The executive has thus opted for a position clearly aligned with the interests of the consumer, going beyond the ten-year period indicated by the European Parliament, establishing a period of only five years from the end of treatment without relapse so that the insurer cannot take into account oncological antecedents, even if they were already known by any means. However, the Government expressly reserves the right to modify the time limits for specific oncological pathologies, considering their characteristics and the evolution of scientific advances in the field.
From the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyse and defend your problem in matters of civil liability and insurance in the most professional and efficient manner.
Adrián Macias Catalina
Belzuz Abogados SLP
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