UK: EDPB Issues Guidelines On The Contractual Lawful Basis For Processing For Online Services

The European Data Protection Board (EDPB) met for its fourteenth plenary session on 8 and 9 October 2019.

One of the key developments was the adoption of the final version of its guidelines on the contractual lawful basis for the processing of personal data in the context of online services under Article 6(1)(b) of the General Data Protection Regulation (GDPR), more commonly known as 'performance of a contract' legal basis.

The final version of the guidelines has not changed from the previous draft which we discussed here in our blog in April.

As a reminder, we have outlined below some of the key points from the guidelines.

Scope of the guidelines

EDPB notes that the guidelines relate to the applicability of Article 6(1)(b) to the processing of personal data in the context of contracts for online services. Online services are any information society services, also defined as "any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services". This definition extends to the fields of social media and e-commerce. It also covers services that are not paid for directly by the recipients, such as online services funded through advertising.

Article 6(1)(b) GDPR provides a lawful basis for the processing of personal data where either of the two conditions are met: (1) the processing is necessary for the performance of a contract with a data subject or (2) the processing is necessary for pre-contractual steps at the request of a data subject.

The EDPB clarifies that the previous guidance published by the Article 29 Working Party remains relevant, and any processing of personal data must comply with the GDPR as a whole.

Processing necessary for the performance of a contract with the data subject

Necessity is a prerequisite for reliance on Article 6(1)(b). EDPB reminds controllers that the concept of necessity involves consideration of the fundamental right to privacy and protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

The data processing must be necessary for the performance of a contract with the data subject. EDPB notes that if there are less intrusive alternatives compared to other options for achieving the same goal, the processing is not "necessary". As such, EDPB clarifies that Article 6(1)(b) will not cover processing which is useful but not objectively necessary.

EDPB recommends that controllers carry out an assessment of whether Article 6(1)(b) is applicable by asking the following questions:

  1. What is the nature of the service being provided to the data subject? What are its distinguishing characteristics?
  2. What is the exact rationale of the contract (that is, its substance and fundamental object)?
  3. What are the essential elements of the contract?
  4. What are the mutual perspectives and expectations of the parties to the contract? How is the service promoted or advertised to the data subject? Would an ordinary user of the service reasonably expect that, considering the nature of the service, the envisaged processing will take place in order to perform the contract to which they are a party?

Processing necessary for pre-contractual steps at the request of a data subject

The second part of Article 6(1)(b) GDPR covers the processing of personal data necessary for taking pre-contractual steps prior to entering into a contract with the data subject. This addresses the situation where processing personal data is necessary to facilitate the actual entering into a contract. EDPB clarifies that this provision would not cover unsolicited marketing or other processing which is carried out on the initiative of the data controller or at the request of a third party.

Termination of contract

EDPB notes that where Article 6(1)(b) is used as the legal basis for the processing of personal data, the controller should anticipate what happens when the contract is terminated.

Upon termination, as a general rule, the processing of personal data will no longer be necessary for the performance of the contract. As such, the controller will need to stop processing. While EDPB recognises that "it is generally unfair to swap to a new legal basis when the original basis ceases to exist", there are instances when this may apply if there is a legal obligation to retain certain records.

Applicability of Article 6(1)(b) in specific situations

The guidelines also address the applicability of Article 6(1)(b) in specific situations, such as processing for service improvement, fraud prevention, online behavioral advertising, and personalisation of content.

Processing for service improvement is unlikely to satisfy the necessity threshold. Similarly, processing for fraud prevention will also be unnecessary, but could be carried out under another basis, such as legal obligation or legitimate interest.

Personalisation of content may, in some instances, be necessary, depending on whether the personalisation of the content is objectively necessary for the purpose of the underlying contract.

Comment

The basis for processing personal data must rest on one of the six legal bases provided for in Article 6(1)(a) – (f) of the GDPR. These guidelines are a welcome clarification on the correct practice for circumstances in which it is appropriate to use Article 6(1)(b) as the lawful basis for processing personal data. We expect EDPB will publish further guidelines in the future to address other lawful bases for processing personal data to correct overly broad application of the Article 6(1) legal bases. In the meantime, keep an eye on our blog for updates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions