There are six legal grounds for processing personal data under the General Data Protection Regulation (GDPR). Once GDPR comes into law on May 25th 2018, you must meet one of these conditions if you process personally identifiable information (PII) or you will face administrative fines of up to €10M ($12,443,500 USD) or 2% of your turnover from the previous 12 months.
Article 6(1) of the GDPR defines the conditions that must be met for the processing of PII to be lawful. The conditions are:
- The data subject has given consent to the processing of their personal data for one or more specific purposes;
- 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;
- Processing is necessary for compliance with a legal obligation to which the controller is subject;
- Processing is necessary in order to protect the vital interests of the data subject;
- 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;
- 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.
GDPR Article 5 states: These conditions are all equally valid and organizations should assess which of these grounds are most appropriate for different processing activities and then fulfill any further requirements the GDPR sets out for these conditions.
From the list above, processing activities 2, 3, 4 and 5 (performance of a contract, legal obligation, vital interests and public task) should be easily identified. For most people, the difficulty will be deciding between Consent and Legitimate Interests when assessing which is more appropriate for processing of specific PII.
Consent as a Legal Ground for Processing PII
The advice on Consent is clear and unambiguous from both the regulation itself and the guidance from the Information Commissioner's Office (ICO).
Article 4(11) defines Consent 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;
For clarity, Recital 32 goes on to say:
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 ICO issued a draft guidance document on the concept of Consent. The document clearly states:
Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of consent by default:
- 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, Or When you are required to have consent. i.e. for electronic marketing.
Legitimate Interests as a Legal Ground for Processing PII
Recital 47 of the GDPR describes areas where Legitimate Interest might be relied upon. These include:
- 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’.
There is also a specific mention regarding Direct Marketing: “The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”
There are four key factors to be aware of:
- You must be able to demonstrate a balance between your interests and the rights and interests of the individuals affected.
- Your assessment must be documented so that it can be challenged by individuals or the Regulator.
- You must be able to uphold an individual’s right to object to the processing of their PII.