Tag: data processing

Lawful Basis: Public Task

The public task is applicable when personal data processing is required in the exercise of official authority or when the law allows it in the public interest.

It is most relevant to public authorities, but it can apply to any organisation that exercises official authority or carries out tasks in the public interest.
A specific statutory power is not required to process personal data, but the underlying task, function or power must have a clear basis in law.
The processing must be necessary. If the task can be reasonably perform ed or the powers exercised in a less intrusive way, this lawful basis does not apply.
As always, the action should be documented for justification about the why and how the personal data was gathered and processed and, if relevant, the individuals should be informed.

What are public interests?

As stated in Article 6(1)(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”

When is it applied?

Its application is mainly driven by law. When the law lays down a specific task in the public interest or when an official authority exercise is required, such as a public body’s tasks, functions, duties or powers. This covers public functions and powers that are set out in law.

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Lawful Basis: Vital Interests

The vital interest is applicable when the personal data processing is required to protect someone’s life.
This basis will not apply when it is possible to reasonably protect the person’s vital interests in another less intrusive way.
This basis also will not apply for health data or other special category data if the individual is capable of giving consent or if the individual refuses to give consent.
As always, the action should be documented for justification about the why and how the personal data was gathered and processed and, if relevant, the individuals should be informed.

What are “Vital Interests”?

Following Recital 46, vital interests are intended to cover only interests that are essential for someone’s life.

When is it Applied?

Since this lawful basis is very limited in its scope, it generally only applies to matters of life and death.
Thus, this is particularly relevant for emergency medical care, specially when the personal data processing is necessary for medical purposes and but the individual is not capable of giving consent for the processing.

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Lawful Basis: Legal Obligation

The legal obligation is applicable as a lawful basis when it is necessary to process personal data to comply with a common law or a statutory obligation. In this case, there must be a specific legal provision or an appropriate source of advice or guidance that clearly sets out the obligation.
This does not apply to contractual obligations and it does not apply when it is reasonably possible to achieve the same goal without processing the personal data.
As always, the action should be documented for justification about the why and how the personal data was gathered and processed.

When is it Applied?

It is applied when an organization is obliged to process the personal data to comply with the law.
Be aware that Recital 41 confirms that this does not have to be an explicit statutory obligation, as long as the application of the law is foreseeable to those individuals subject to it. So it includes clear common law obligations.

In a simple and straightforward way, it is applied whenever a state member or EU law enforces it because the overall purpose is to comply with a legal obligation which has a sufficiently clear basis in either common law or statute.

Obviously, it requires the identification of the obligation in question, either by reference to the specific legal provision or else by pointing to an appropriate source of advice or guidance that sets it out clearly. For example, you can refer to a government website or to industry guidance that explains generally applicable legal obligations.

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Basis for Personal Data Processing

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.

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GDPR Principles

The GDPR define the main responsibilities for organisations when it comes to data protection and personal data processing.

Article 5 of the GDPR introduces the two pillars of the personal data protection and processing. Putting it simply, it introduces the data related principles and who is responsible for enforcing it.

Data Principles

Under GDPR, personal data shall be:

  • processed lawfully, fairly and in a transparent manner in relation to individuals;
  • collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;
  • adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
  • accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;
  • kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals;
  • processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

As seen above, there are specific situations where the data protection and processing principles have been, somewhat, extended.
For such cases, safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes are introduced in Article 89.

Controller

Under GDPR, a controller is required and shall be

be responsible for, and be able to demonstrate, compliance with the principles.

In short, organisations now have a Data Protection Officer (commonly known as DPO) that has the responsible for, and be able to demonstrate compliance with, the data protection in accordance with GDPR, becoming accountable for its compliance.

Depending on the size of the organisation, DPO can be someone from the organisation itself, except someone from the organisation administration, for obviously possible conflict of interests.

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