Do you have a legal ground for processing personal data? You need one under the GDPR
In preparation for the EU General Data Protection Regulation, which comes into force on 25 May 2018, organisations need to ensure activities involving the processing of personal information are undertaken under one of the six legal grounds for processing.
Article 6(1) of the GDPR sets out the conditions the must be met for the processing of personal data to be lawful. They are:
(a) the data subject has given consent to the processing of their personal data for one or more specific purposes;
(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;
(d) processing is necessary in order to protect the vital interests of the data subject;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) processing is necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.
These conditions are all equally valid and organisations should assess which of these grounds are most appropriate for different processing activities and then fulfil any further requirements the GDPR sets out for these conditions (GDPR Article 5).
Processing activities that fall under performance of a contract, legal obligation, vital interests and public task may be fairly straight-forward to identify. The key for many will be assessing whether Consent or Legitimate Interests will be most appropriate for specific processing of personal information.
CONSENT as a legal ground for processing personal data
The GDPR defines Consent in Article 4(11) as:
‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;
Recital 32 states:
Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.
The UK’s Data Protection Regulator’s (ICO) draft guidance on Consent clearly states:
Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of consent by default.
At the ICO’s Data Practitioner’s Conference earlier this year, it was stressed that:
• Consent must be named, i.e. third parties with whom the data may be shared with must be specifically named. Simply providing categories of third parties will not be acceptable.
• Consent should be granular, i.e. separate consent should be obtained for independent processing operations
• Consent mustn’t be a pre-condition and should not be bundled in with Terms & Conditions
• Consent should only be relied upon if;
– there is no other lawful basis for processing
– you can give individuals a genuine choice
– when you are required to have consent i.e. for electronic marketing
The final text of the proposed Regulation on Privacy and Electronic Communications is anticipated later this year. ePrivacy Regulation – what can we expect?
LEGITIMATE INTERESTS as a legal ground for processing personal information
To offer support to the ICO in the run up to May 2018, and in the spirit of Industry and Regulator partnership, the Data Protection Network (DPN) has set up a Working Party, which includes the DMA, ISBA and cross-sector data protection and privacy specialists, to produce guidance for commercial and not-for-profit organisations on the use of Legitimate Interests under the General Data Protection Regulation (GDPR). An initiative that has been warmly welcomed by the Information Commissioner, Elizabeth Denham. See PRESS RELEASE
The ICO’s draft guidance on Consent states:
consent is one lawful basis for processing, but there are five others. Consent won’t always be the easiest or most appropriate.
When considering whether you can rely on Legitimate Interests, organisations should be aware of four key factors:
1) It will be necessary to demonstrate that you have balanced your interests with the interests and rights of the individuals affected by your proposed processing activity
2) This assessment (which may be a simple process or very detailed in more complex scenarios) should be documented and may be challenged by individuals or the Regulator
4) You will need to be able to uphold the individual’s right to object to such processing
Recital 47 of the GDPR broadly describes areas where Legitimate Interest might be relied upon, for example when the processing is strictly necessary for the purposes of preventing fraud or ensuring network security, where there is a ‘reasonable expectation’ or a ‘relevant and appropriate relationship’. Recital 47 also specifically mentions;
“the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate”
Following the ICO’s consultation on its draft guidance on Consent, the Regulator says it hopes to publish final guidance in June, but says this timescale may be affected by developments at European level.
The DPN will keep you updated on the progress of its Legitimate Interests Guidance, which was submitted to the ICO for review and comment in April.
The information provided and the opinions expressed in this document represent the views of the Data Protection Network. They do not constitute legal advice and cannot be construed as offering comprehensive guidance to the Data Protection Act 1998 or other statutory measures referred to in the document.