General Data Protection Regulation (“GDPR”), is the main legislation in Europe that seriously affects the whole personal data processing activities. Whilst, bringing drastic changes for the companies like; monetary fines up to % 4 of the global turnover or 20 Million Euros, it is extending the rights of the data subjects as well; like “right to be forgotten” claims. In such dynamic realm where privacy will be “by design” the core principle shall be providing more control to the owners over their personal data.
As explicit consent is the primary pre-requisite for data processing, “legitimate interest” is one of exceptions of it and is the most flexible lawful basis for processing.
As it is flexible and fragile, we are handling it with care! We are following the related European governmental and independent regulatory bodies closely and have meticulously adapted their principles to our operations, in line with their guidelines.
SO, WHAT IS LEGITIMATE INTEREST?
An ‘interest’ can be considered as ‘legitimate’, as long as the Controller can pursue this interest in a way that complies with data protection and other laws.
Legitimate interest has been defined both in Article 6 1(f) of GDPR and its Recital 47. Especially the marketing purposes are avidly defined as legitimate in Recital 47 as follows; “…The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”
However, this does not automatically mean that all processing for marketing purposes is lawful on this basis. You still need to show that your processing passes the necessity and balancing tests.
When looking at the balancing test, you should also consider factors such as:
- whether people would expect you to use their details in this way;
- the potential nuisance factor of unwanted marketing messages; and
- the effect your chosen method and frequency of communication might have on more vulnerable individuals; like children.
Given that individuals have the absolute right to object to direct marketing under Article 21(2), it is more difficult to pass the balancing test if you do not give individuals a clear option to opt out of direct marketing when you initially collect their details (or in your first communication, if the data was not collected directly from the individual).
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.
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.
CAN WE USE LEGITIMATE INTERESTS FOR BUSINESS TO BUSINESS CONTACTS?
“Yes” indeed . This type of processing will be lawful as well, on the basis of legitimate interests, but you need to apply the 3-part Legitimate Interest Assessment test.
You can consider using legitimate interests as your lawful basis for such processing. However, you need to identify your specific interest underlying the processing and ensure that the processing is actually necessary for that purpose.
Assuming you can meet these first two parts of the three-part test, you also need to consider the balancing test. You may find it is straightforward as business contacts are more likely to reasonably expect the processing of their personal data in a business context, and the processing is less likely to have a significant impact on them personally.
For more information regarding the legitimate interest principle and its assessment test with the related documentation, which we have also strictly followed and implemented in our business operations please visit; https://dma.org.uk/uploads/misc/59ca0f2e17ef3-dpn-li-guidance-publication_59ca0f2e17e5a.pdf or please feel free to send your inquiries to us via e-mail.
THE 3-PART LEGITIMATE INSTERESTS ASSESSMENTS “(LIA”) TEST
According to the ICO, DMA and related regulatory bodies’ guidelines, you SHOULD perform a legitimate interests assessment test to help you demonstrate compliance if required.
There are 3 elements to the legitimate interests basis. It helps to think of this as a 3-part test, which will be the main pillar of your LIA. In this 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.
Therefore, in the light of this 3-part test; we have implemented a through LIA in order to justify the legitimate interest of ours/our clients and we are constantly keeping it updated in accordance with our operations.
WE ARE FULLY GDPR COMPLIANT AND TO STAY LIKE THIS WE…
- We have checked that legitimate interests is the most appropriate basis.
- We understand our responsibility to protect the individual’s interests.
- We have conducted a legitimate interests assessment (LIA) and kept a record of it, to ensure that we can justify our decision.
- We have identified the relevant legitimate interests.
- We have checked that the processing is necessary and there is no less intrusive way to achieve the same result.
- We have done a balancing test, and are confident that the individual’s interests do not override those legitimate interests.
- We only use individuals’ data in ways they would reasonably expect, unless we have a very good reason.
- We are not using people’s data in ways they would find intrusive or which could cause them harm, unless we have a very good reason.
- We do not process special category and children’s data.
- We have considered safeguards to reduce the impact where possible.
- We are promoting our clients to offer an “opt out”.
- We keep our LIA under review, and repeat it if circumstances change.