It’s Not All About Consent – GDPR Legal Basis for Data Processing

A good place to start your GDPR compliance journey is to establish whether or not you have a legal basis for processing personal data? Many organisations believe this is about establishing consent. This is not the case.

In preparation for the EU General Data Protection Regulation, organisations will need to ensure any activities which involve the processing of personal information are undertaken under one of the six lawful bases for processing.

Article 6(1) of the GDPR lays out the conditions that must be met for the processing of personal data to be lawful. They are as follows: –

  • (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.

The above conditions are all equally valid and organisations should assess which legal basis is 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 easier 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 Basis 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.

The ICO guidelines highlight the following:

  • 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

Legitimate Interests as a Legal Basis for Processing Personal Information

The ICO’s draft guidance on Consent states:

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
3) You will need to inform individuals that you are processing their personal information under this condition (i.e. via your Privacy Policy)
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 specifically mentions; “the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”

Following the ICO’s consultation on its draft guidance on Consent, the Regulator says it hopes to publish final guidance in January 2018, taking into consideration guidance at a European level.

If your organisation needs help in implementing policies, management systems and control to comply with the GDPR, please feel free to contact SHC via the website

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