The General Data Protection Regulation (GDPR) becomes applicable in the United Kingdom on 25th May 2018. Preparations are well underway in business, government and the regulator for the new privacy and data protection landscape. People are trying to find their way through the GDPR and the Data Protection Bill to understand exactly what it is that they’re required to do in order to comply with the new framework, but there are a lot of misunderstandings about certain requirements of the GDPR. I have already dealt with one of those, the issue as to whether or not consent is required under the GDPR on this blog. Another area where there appears to a lot of misunderstanding is with the legitimate interests ground for processing, especially in the area of direct marketing.
Article 6(1)(f) of the GDPR provides that it is lawful to process the personal data of a data subject where the “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 is the legitimate interests ground for processing; but as can be seen from a proper reading of the condition, it is not the silver bullet condition that some people seem to think that it is.
There are essentially three elements to the condition: (1) necessity; (2) legitimate interests of the controller or a third party; (3) the interests or fundamental rights of the data subject. Therefore before being able to rely upon legitimate interests as the processing condition, it is essential that controllers go through a three stage process. The first stage is to identify what the interests are. In determining whether the interest identified by the data controller is a legitimate interest, it is necessary for them to consider whether a data subject can reasonably expect, at the time and in the context of the collection of the personal data, that processing for this purpose may take place. If a data subject could not reasonably expect that the processing envisaged by the data controller may take place, at the time and in the context of collection of the personal data, it will not be a legitimate interest.
The second stage is to consider necessity; the processing must be necessary for the legitimate interest(s) being pursued. If the processing is not necessary then a data controller cannot rely upon the ‘legitimate interests’ condition for processing the personal data in question. The ICO currently puts it this way “[i]f you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.” It is therefore essential to consider whether there are other ways to fulfil the legitimate interest(s) identified. The test does not require it to be “strictly necessary” or “absolutely necessary”, but it is still a high test
The final element that needs to be considered before a decision to rely upon legitimate interests can be taken, is whether the legitimate interests are overridden by the fundamental rights and freedoms of the data subject. This can be a very difficult assessment to make and can, on occasions, be on a knife-edge. It is fundamentally about proportionality and in a lot of cases the data subject’s fundamental rights and freedoms will override the legitimate interests with the result that another condition needs to be found to enable processing take place.
At the very outset I did mention that there is a lot of misunderstanding about legitimate interests in the field of direct marketing. It is true that the GDPR does state, in Recital 47, that “[t]he processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest”, but it’s not as simple as that. Firstly it is important to note that the Recital states that it “may be” a legitimate interest; that is not the same thing as saying that it “will be” or “is” a legitimate interest. It only opens the door to marketing being a legitimate interest; it does not remove the need to consider whether it is, in any given context, a legitimate interest.
Secondly, it is important not to consider the GDPR in isolation. I have already written about the forgotten relative of the GDPR: The Privacy and Electronic Communications (EC Directive) Regulations 2003. These are extremely relevant when conducting direct marketing by electronic means (such a by telephone, E-mail or text message). Processing personal data for the purposes of marketing might well be lawful because it can be shown that it is a legitimate interest for the controller or a third party, but how that marketing is then delivered must comply with the other relevant laws and codes which regulate marketing activity.
The legitimate interests condition is a flexible one, but data controllers should not assume that if no other condition applies, or is appropriate, that they can simply say “it’s legitimate interests” and be done with it. Where a controller does rely upon legitimate interests, the accountability principle will kick in and the supervisory authority may well ask for it to be justified. Therefore, where it is proposed to rely upon legitimate interests a record should be kept demonstrating how each of three elements to the legitimate interests condition is met.