National Rapporteur on Human Trafficking Herman Bolhaar reports that because of privacy laws, victims of human trafficking are not in the picture. This can easily lead to the misconception that social workers may not pass on suspicions of human trafficking to the appropriate authorities. But social workers are always authorized to report human trafficking. Even without the person's consent.
The reason for Mr. Bolhaar's comment is the recently released "Human Trafficking Victim Monitor 2014-2018. Herman Bolhaar is the National Rapporteur on Human Trafficking and Sexual Violence against Children. The monitor was published under his responsibility.(1) 'The number of registered victims of human trafficking has almost halved in recent years. The decline is caused by the fact that non-detection agencies, such as aid agencies, report much less. In the period 2014-2017 these reporting agencies made an average of 550 reports annually, in 2018 there were only 150. These agencies report less because, due to privacy laws, they are not allowed to share data for registration without the explicit consent of the victim.'
The monitor here talks about collecting data for statistics and policy purposes, not reporting to agencies to address human trafficking in a particular case. The headlines create additional confusion: "Young victims of human trafficking completely out of the picture because of privacy law: 'dramatic' and 'unacceptable.' This headline suggests that privacy gets in the way of addressing human trafficking, that a disclosure of personal data without consent is not possible.(2)
With the introduction of the General Data Protection Regulation (GDPR) in May 2018, little has changed for social services. The legal standards and their interpretation have remained almost the same. What has changed, however, is the uncertainty surrounding the topic of privacy and misunderstandings. These have increased.(3)
My blog last month "Consent: a big misunderstanding" listed five situations in which data may be processed without consent;
Two such situations apply here:
If the responsible party is required or authorized to provide personal data under a law;
in case of conflict of duties, where the duty of confidentiality clashes with the right to disclose data due to compelling interests of the client or another.
Several laws describe the possibility of providing information. In some cases, information must be provided, which is the "duty to disclose. In many situations, information may be provided.
If data must be provided, the law defines exactly who must provide what information to whom for what purposes. This obligation can be recognized by verbs used in the law such as "provides," "supplies," and "gives. This means that in those cases mentioned in the law, information must be provided. For example, under the Participation Act, a large number of bodies are obliged to provide information if requested to do so by the municipality.(4) For example, a civil servant has an obligation to provide information in the event of a well-founded suspicion of misuse of a social benefit.(5) Such an obligation to provide information also applies to the CIZ under the Wmo 2015.(6)
For social workers, an obligation to disclose is rare. We usually find it in the "compulsory" relationships; with the Youth Act in the case of supervision and a similar obligation can be found in the Probation Regulation.(7)
In addition, there are many situations where there is no obligation but a power to provide personal data: a right to report.
Providing under a statutory authority is complex, because this authority to report a distressing situation requires a decision to be made in each individual case.
The reporter, the provider of personal data, makes the decision himself whether to provide the information he has. This can be found in the law as a "can provision," as in the power to report to the Index of Youth at Risk or to report to Safe House. The practitioner weighs up the options and retains his own responsibility. In extreme cases he can be held personally accountable for this on the basis of disciplinary provisions of the profession. Examples of the power to report can be found in the Wmo 2015 and the Youth Act, among others.(8)
In addition, every professional always has the option of breaking the duty of confidentiality in the event of a 'conflict of duties'. 'Conflict of duties' means that there may be an urgent reason to provide information despite the duty of confidentiality. The duty to remain silent clashes with the right to speak because of compelling interests of the client or another person. The decision to break the duty of confidentiality can only be made in a specific case. Often in these situations there is a dilemma and an unequal balance of power; a child must be protected from a parent, a needy person from a caregiver with wrong motives and so on.
There must be a balancing of interests involving the following aspects:
Is there really no consent to be obtained;
What weighty interest plays a role here that makes the caregiver in a state of conscience;
Can the problem also be solved without breaking confidentiality (subsidiarity);
It must be clear that not breaking the secret causes serious harm to another person AND that it is virtually certain that that harm can be prevented or limited by breaking the obligation of silence.
A detailed balancing of interests to be made in each individual case then helps to arrive at a correct judgment.(9)
Thus, when serious signals and reports of human trafficking are made, caregivers can use the authority to report, for example, to Safe House, or another agency, despite the confusing announcements in the media.
Finally, the question of the lawful basis for such disclosures still arises. This requires further investigation and a separate discussion. It depends, among other things, on the capacity of the person providing data.
For social workers and officials with a power to report, the law granting that power constitutes the lawful basis. In addition, sometimes "vital interest" can provide guidance or a "conflict of duties.
(1) https://www.nationaalrapporteur.nl/actueel/2019/effectieve-aanpak-mensenhandel-staat-op-losse-schroeven.aspx
(2) Volkskrant of 18 October
(3) See the texts on 'Consent' and the 'Processor'
(4) Art. 63 and 64 Participation Act
(5) Art. 66 Participation Act
(6) Art. 5.2.5. subsection 3 Wmo 2015
(7) Art. 7.3.11 subsection 4 Youth Act and Art. 12 Probation Regulation
(8) 5.2.6. Wmo 2015 and 7.1.4.1 Youth Act
(9) See Privacy in the Social Domain, Corrie Ebbers et al., p. 41 and Appendix 2
Together with Paulien Bunt, Sophie Vastenhout and Micha Venderbos, Corrie Ebbers wrote the book Privacy in the Social Domain. Also see Corrie Ebbers' previous blogs on privacy in the social domain.
This article can also be found in the file Privacy in the social domain
