Lawful Basis: Legitimate Interests

The legitimate interests is the most flexible lawful basis for processing, but it cannot be assumed that it will always be the most appropriate. When personal data is used in ways that people would reasonably expect it to be used and were it has a minimal impact on their privacy or a compelling justification exists for the processing.

When the legitimate interests lawful basis is used, extra responsibility for considering and protecting people’s rights and interest 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 legitimate interests?

As stated in Article 6(1)(f), “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party 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 can be broken down into a three parts test:

  1. Purpose: is there a legitimate interest involved?

    The legitimate interests can be of either parties involved and they can include commercial interests, individual interests or broader societal benefits.

  2. Necessity: is the processing necessary for that purpose?

    The processing must be a targeted and proportionate way of achieving the main purpose.

  3. Balancing: do the individual’s interests override the legitimate interest?

    There must be a balance between both parties interests. If individual’s would not reasonably expect their data to be used in that way, or if it would cause them unwarranted harm, their interests are likely to prevent the use of this lawful basis.

Client and employee data, marketing fraud preventing, intragroup transfers, and IT security is specifically mentioned in GDPR as legitimate interests. Disclosing information about possible criminal acts or security threats to the authorities is also considered to be a legitimate interest.

When is it applied?

Legitimate interests is the most flexible lawful basis, but it must not be assumed that it will always be the most appropriate for processing.
When choosing the legitimate interests, extra responsibility is implied for ensuring people’s rights and interests are fully considered and protected.

Legitimate interests is most likely to be an appropriate basis when data is used in ways that people would reasonably expect and have a minimal privacy impact. If there is an impact on individuals, this lawful basis may still apply if there is a justification of a more compelling benefit to the processing and the impact is justified.

Public authorities, in particular, can only rely on legitimate interests when processing for a legitimate reason other than performing their tasks as a public authority.

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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: Contract

There is a lawful basis for personal data processing when the personal data of an individual is required to fulfill a contract obligation or when the individual asks an organization to do something before entering in a contract.
This 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.

Contracts

When the personal data processing is required for a contract with an individual, a separate consent is not required.
This is quite simple and straightforward.

When in a special category data is necessary for the contract, then it is also required to identify a separate condition for processing this data.

When the contract is with a child under 18, the organization must consider whether they have the necessary competence to enter into the contract. When in doubt, another lawful basis could be applied, for instance, legitimate interests if it demonstrates that the child’s rights and interests are properly considered and protected.

Rights

When personal data is being processed on the basis of contract, the individual’s right to object and the right not to be subject to a decision based solely on automated processing does not apply. However, the individual has the right to data portability.

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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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