GDPR enforces organizations to have a valid lawful basis in order to process personal data.
There are six lawful bases, all equal in importance, though the selection of which basis is the most appropriate to use will depend on the organization purpose and its relationship with people.
The lawful basis must be determined before the data processing begins because it should be documented along with the purposes of the data processing, and included in the privacy notice accepted by the individuals. This makes it clear for the people to know what they are consenting.
If the purposes change, unless it is compatible with the initial purpose, it will require a change of the lawful basis, and it could be necessary to redo the processes of documentation, consenting, etc..
Lawful Bases for Data Processing
The six lawful bases for personal data processing are defined in Article 6:
- 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.
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.
Processing Special Category Data
When processing special category data organizations need to identify both a lawful basis for the general processing and an additional condition for processing this type of data.
Criminal Data Processing
When processing criminal conviction data, or data about offenses, it is necessary to identify both a lawful basis for general processing and an additional condition for processing this type of data.