Bulgaria: GDPR Basics Part 3: Legal Grounds For Personal Data Processing

Last Updated: 26 January 2018
Article by Dragomir Stefanov

On its entry into force, the GDPR would make reliance on data subjects' consents inappropriate for many personal data processing activities. A practical tip to self-test current consents: if it seems difficult for a controller to obtain a valid consent, perhaps there is another legal ground that should apply. When implementing a GDPR compliance strategy, it is of high importance to know the legal grounds for lawful processing but also what their context is.

  1. Contractual performance

Personal data processing would be lawful, if it is necessary either for the performance of a contract to which the data subject is a party or to act at the request of the data subject prior to entering into such contract. This would be the case where a customer is ordering a product or a service through the Internet and the processing of his or her name, address and credit card details is required for the delivery and payment. Where a third party performs the delivery, it would be appropriate to inform the data subject about, among others, that third party's identity (in line with the right to be informed, previously discussed). This legal basis generally remains unchanged under the GDPR.

  1. Legal obligation

Pursuant to Article 6, par. 1, it. (c) of the GDPR, data controllers may process personal data to comply with a legal obligation to which they are subject. The obligation must be imposed by law (i.e. the laws of the European Union or of a Member State). Obligations stemming from a third country law do not qualify as a "legal obligation" within the meaning of Article 6 of the GDPR. It should be the law and not the controller to determine the type of personal data, which are subject to the processing, the data subjects concerned, the entities to which the personal data may be disclosed, the purpose limitations, the storage period and other measures to ensure lawful and fair processing.

  1. Protection of the vital interests of the data subject or of another natural person

The GDPR stipulates that processing will be lawful where it is necessary to protect the vital interests of the data subject or of another individual. The term "vital interests" implies that such legal basis should be applied only in exceptional circumstances where the life or health of the data subject or that of another natural person needs protection. Recital 46 of the GDPR provides some examples: "for humanitarian purposes, including for monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters".

  1. A task carried out in the public interest or in the exercise of official authority

Personal data may be processed for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. The GDPR leaves to the EU or Member State national law to determine whether the controller performing a task carried out in the public interest or in the exercise of official authority should be a public authority or another natural or legal person governed by public law, or, where it is in the public interest to do so, including for health purposes, by private law, such as a professional association. Companies may not themselves consider that they are performing a task in public interest unless such task is conferred to them by law.

This legal basis may also apply where the controller is disclosing personal data to a third party which is vested with an official authority (for example to report theft, fraud or other crime to the police).

  1. Legitimate interests of the controller

Under Article 6, par. 1 (f) of the GDPR, processing would be permitted for the purposes of the controller's or third party's legitimate interests, 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.

According to the Article 29 Working Party a "legitimate interest" is a clearly articulated, real and present (i.e. not too vague or speculative) stake that the company has when processing personal data. Moreover, such interest must be lawful, i.e. compliant with the applicable EU and national law.

After a legitimate interest is clearly defined, the balancing test between such interests and the interests or fundamental rights and freedoms of the data subject must be performed. The GDPR stipulates that "the existence of a legitimate interest would need careful assessment  including whether a data subject can reasonably expect at the time and in the context of the collection of the personal data that processing for that purpose may take place... interests and fundamental rights of the data subject could in particular override the interest of the data controller where personal data are processed in circumstances where data subjects do not reasonably expect further processing" (emphasis added).

Additional criteria when performing the balancing test might be:

  • the type and amount of personal data processed;
  • the nature of the processing activities (e.g. strictly internal use with limited access or disclosed publicly);
  • the impact (of any kind, e.g. material, emotional etc.) of the processing and the likelihood of the risks (if any) on individuals' interests and rights, and
  • whether the controller's interest is of a compelling nature; where such interest is minor or not very compelling, it may override the rights and freedoms of data subjects only if the impact of the processing would be even more trivial.

For example, analysis of trends in clients' activities and conducting promotional campaigns based on the results (e.g. discount price offers sent by traditional mail or e-mail) may serve a legitimate interest of the controller (better customer service) and might not constitute an excessive intrusion in the individuals' privacy, given the potential benefits for them. However, the same scenario may lead to the opposite conclusion, if the amount or type of personal data processed is disproportionate and is being processed in a non-transparent manner and without any additional safeguards like a user-friendly procedure for objecting to such processing, data pseudonymisation or similar.

Finally, processing on the basis of legitimate interests imposes obligation on controllers to inform the data subjects of the pursued interests and entitles data subjects to object to the processing (you can find more details on individuals' rights under the GDPR in our article "Rights of Data Subjects under the GDPR").

  1. Implications

It is likely that the most commonly used grounds for personal data processing under the GDPR in the private sector would be the "contractual performance", "legitimate interests" and "data subject's consent". As suggested in Part 2 of our GDPR-dedicated articles, an effective GDPR-compliant privacy policy should rely on data subjects' consents, where neither of the other two grounds applies.

As mentioned in Section 5 above, sometimes the legitimate interests test might lead to open-ended interpretations, where a fine line separates the justified from unjustified processing. Thus, it will become critical for data controllers to achieve an efficient and safe balance among the lawful grounds for processing and to consider obtaining data subjects' consents when necessary for them to stay on the safe side.

Under the GDPR, situations would arise where a data controller would have to rely on several legal grounds for processing of personal data related to one single data subject. For example, an employer may have legal obligations to report certain personal data to the social security authorities. That very same data might be necessary for the performance of the employment agreement (payment of salary, etc.). Further, the employer's overriding legitimate interests might justify CCTV surveillance or monitoring of the employee's online activities at work. Sharing employee's personal data in a company journal or bulletin may require that employee's consent.

Businesses should have and keep at all times a clear picture of all processing activities taking place within the company and be able to define unambiguously the legal basis for each of them. Any unlawful processing (i.e. where no legal ground, including consent, is applicable) must be suspended, analysed and eventually terminated, as appropriate.

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
Hristov & Partners
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Hristov & Partners
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must 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