Using Legitimate Interest as your lawful basis
Posted on 24th May 2020 at 12:17
Legitimate interests is the most flexible lawful basis for processing, but you cannot assume it will always be the most appropriate and here is why:
It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing.
If you choose to rely on legitimate interests, you are taking on extra responsibility for considering and protecting people’s rights and interests.
Public authorities can only rely on legitimate interests if they are processing for a legitimate reason other than performing their tasks as a public authority.
There are three elements to the legitimate interests basis. It helps to think of this as a three-part test. You need to:
identify a legitimate interest;
show that the processing is necessary to achieve it; and
balance it against the individual’s interests, rights and freedoms.
The legitimate interests can be your own interests or the interests of third parties. They can include commercial interests, individual interests or broader societal benefits. The processing must be necessary. If you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.
You must balance your interests against the individual’s. If they would not reasonably expect the processing, or if it would cause unjustified harm, their interests are likely to override your legitimate interests. Keep a record of your legitimate interests assessment (LIA) to help you demonstrate compliance if required. You must include details of your legitimate interests in your privacy information.
What is the ‘legitimate interests’ basis?
Article 6(1)(f) gives you a lawful basis for processing where:
“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-part test:
1. Purpose test: are you pursuing a legitimate interest?
2. Necessity test: is the processing necessary for that purpose?
3. Balancing test: do the individual’s interests override the legitimate interest?
A wide range of interests may be legitimate interests. They can be your own interests or the interests of third parties, and commercial interests as well as wider societal benefits. They may be compelling or trivial, but trivial interests may be more easily overridden in the balancing test.
The GDPR specifically mentions use of client or employee data, marketing, fraud prevention, intra-group transfers, or IT security as potential legitimate interests, but this is not an exhaustive list. It also says that you have a legitimate interest in disclosing information about possible criminal acts or security threats to the authorities.
If you are unsure on this please contact us and we can help you decide if this is the right lawful basis for what you are processing.
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