As lockdown restrictions across the UK gradually begin to lift and businesses start looking forward to a post- or lighter-lockdown world, some festival organisers have been considering different ways to get the industry back on track and functioning as close to “normal” as possible.

This week, the managing director of Festival Republic floated the idea of linking entry to its events with compulsory COVID-19 testing, with only those who have tested negative to COVID-19 within a certain period prior to the festival (e.g. 7-14 days, with the precise figure likely to depend on government guidance at the time) being permitted to enter. Such method is suggested as an alternative to social distancing, which most promoters believe would not work at festivals, that need to be “full houses” to be economically viable. These plans would not currently comply with government guidelines on social distancing or, indeed, COVID-19 regulations that currently limit outdoor gatherings to no more than 6 people, and only in restricted circumstances. However, should guidelines and regulations be relaxed further in the coming months, this idea may become – in theory – viable for 2021 and beyond.

However, as well as testing anti-discrimination restrictions, such a policy would also encounter some potential problems under UK privacy law. Test results would constitute special category data as health information for which there would need to be a lawful basis for processing. Consent, the most obvious basis, might prove difficult since, by its nature, under data protection law, it must be capable of being withdrawn. Further, data protection authorities have been clear to date, at least in an employment context, that individuals can’t be forced to use a track and trace app.

While the live entertainment industry is not the only one floating these ideas, it is also worth noting the practical difficulties; for instance, it would be quite possible for a person to contract COVID-19 between taking a test and attending the festival.

With significant potential legal exposure from attendees, such as claims for negligence, misuse of personal data etc., promoters are facing difficult decisions over how and when they start to open the doors again.