The Legal Basis for Processing

What is the legal basis that your organisation uses for processing the data that they hold?

Are you relying on consent, legitimate interest or a legal reason to collect and process data?

You must first look at the different types of data processing that you do.

Ask yourself, why do you do it? You must identify the legal basis for processing the data, for GDPR you must document that reason.

GDPR is about empowering the individual when it comes to their rights over their data, if you are relying solely on consent as your only justification for processing then be warned, the individual can withdraw their consent, ask to have their data deleted or they can opt not to have their data processed.

Your legal basis for processing personal data should be clear and concise and written into your privacy notice. If asked to perform as SAR you will need to explain clearly your legal basis for processing.

As an organisation you need to clear about the legal basis that you are using, there is a need to be specific and transparent. You need to carefully consider how much personal data that you collect and why – there maybe some categories that you no longer need and can therefore be deleted.

GDPR Article 6(1) sets out conditions that must be met for the processing of personal data to be lawful.

They are:

  1. CONSENT - the data subject has given consent to the processing of their personal data for one or more specific purposes
  2. PERFORMANCE OF A CONTRACT - 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
  3. COMPLIANCE WITH A LEGAL OBLIGATION - processing is necessary for compliance with a legal obligation to which the controller is subject
  4. PROTECT THE VITAL INTERESTS OF THE DATA SUBJECT
  5. PERFORMANCE OF A TASK CARRIED OUT IN THE PUBLIC INTEREST
  6. LEGITIMATE INTEREST - 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.

Organisations need to assess which of these grounds are most appropriate for different processing activities and then fulfil any further requirements the GDPR sets out for these conditions (GDPR Article 5).

GDPR Recitals which you may also find of interest

  • (39) Principles of data processing
  • (40) Lawfulness of data processing
  • (41) Legal basis or legislative measures
  • (42) Burden of proof and requirements for consent
  • (43) Freely given consent
  • (44) Performance of a contract
  • (45) Fulfilment of legal obligations
  • (46) Vital interests of the data subject
  • (47) Overriding legitimate interest
  • (48) Overriding legitimate interest within group of undertakings
  • (49) Network and information security as overriding legitimate interest
  • (50) Further processing of personal data
  • (171) Repeal of Directive 95/46/EC and transitional provision