Right to be forgotten in personal insurance

Author info
Niels Vandezande

Early April, a variant of the right to be forgotten was introduced in insurance law. This was achieved by means of the Act of 4 April 2019 amending the Act of 4 April 2014 on insurances, which introduces a right to be forgotten for certain personal insurances.

Outstanding balance insurances and medical data

The proposal for this Act came at the request of consumer and patient associations to improve the legislation on outstanding balance insurances. Such insurance serves to guarantee the repayment of a mortgage loan relating to the family home or of a professional loan.

When a prospective policyholder wants to take out such insurance, the insurer will ask about the medical history of that person. When the medical history brings up a number of undesirable issues - such as, for example, that the prospective policyholder suffers from a serious condition such as cancer - the insurer will in practice charge many prospective policyholders a higher premium, or even exclude them altogether from subscribing to an outstanding balance insurance.

This practice also takes place when the medical history has become irrelevant because of the complete recovery of the patient.

Right to be forgotten

The Act of 4 April 2019 aims to rectify this situation. To this end, a 'right to be forgotten' is introduced. This means that people who have been affected by any type of cancer still have to report their medical history to the insurer.

However, if a certain period has elapsed - the Act speaks of a principal ten-year period - since the successful completion of the treatment of the cancer and if there was no recurrence within that period, that condition may no longer be taken into account in determining the current state of health of the prospective policyholder. In addition, the condition may not be excluded from the insurance contract, nor may the candidate be refused the insurance because of that previous condition.

An implementing decree to be adopted at a later date may adjust the principal term of ten years in function of age categories and/or types of cancer disorders. For some cancers, for example, a shorter period could be determined. These categories and types are defined at the proposal of the Federal Knowledge Centre for Health Care and following the advice of the Pricing Monitoring Office.

In addition, an implementing decree may also establish a reference grid. Such grid defines chronic diseases for which no additional premium may be charged or which may not lead to an exclusion from the insurance contract. If the reference grid were to allow an additional premium, the implementing decree could still determine the level to which the premium would be justified from a medical and an insurance technical perspective on the basis of scientific data.

This reference grid is also established at the proposal of the Federal Knowledge Centre for Health Care and following the advice of the Pricing Monitoring Office. The Federal Knowledge Centre for Health Care evaluates the reference grid every two years in function of the medical progress and the available scientific data on the disorders.

Following the French example

However, the Act will only apply to new insurance contracts concluded from 1 February 2020 onwards. For the time being, the details that will be laid down in the implementing decree are still awaited.

However, it is already possible to estimate what the reference grid will look like. For this Act, the Belgian legislator has clearly relied on French law, where such a right to be forgotten already exists. This is the so-called Convention AERAS.

This French Convention AERAS goes a little further than Belgian Act and allows, for example, that certain types of cancer disorders do not have to be reported at all after a certain period of time. In France there is, for instance, also already a right to be forgotten after one year for certain types of breast cancer. During the parliamentary preparations for the Belgian Act, a draft reference grid was proposed. This draft should closely follow the French example.