GDPR - Lawfulness of Processing and Consent

Jane Lambert

Yesterday I gave a talk on the GDPR to some 132 local authority personnel. The audience included the chief executive, heads of service, in-house legal advisers and managers and officials of all the council's departments. There were so many that the council chamber was the only room big enough to hold us all.  Some knew a lot about data protection in general and the GDPR in particular. Others wanted some basic information and it was for them that I wrote my Introduction to the GDPR and How the GDPR works.

"You've got them for two hours" said the head of legal before the talk, "tell them a few jokes to stop them falling asleep." As all my clean jokes are about Yorkshire and Yorkshire folk, I thought about telling them how the first Yorkshire pudding was made which, incidentally, was once made into a lovely dance by Jonathan Watkins for Northern Ballet (see  Sapphire 15 March 2015 Terpsichore).  However, we never got that far as the audience turned out to be quite lively and talkative.  What they wanted to talk about most was the legality of processing and consent.

To recap, I wrote on Sunday in How the GDPR works that there are 6 GDPR principles (or 7 if you include "accountability") that are set out in art 5 of the regulation.  The first of these is the "lawfulness, fairness and transparency" principle which is as follows:

"Personal data shall be:
(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);"

 Art 6 (1) sets out the circumstances in which data can be lawfully processed:

"Processing shall be lawful only if and to the extent that at least one of the following applies:
(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
(b)  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;
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;
(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) 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.
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks."

The audience knew that processing could be justified by "consent" but did such consent have to be in writing and was it necessary to ask members of the public who had already given their consent for a particular purpose (say a mailing list for a newsletter about tourist attractions) for their consent again just to comply with the GDPR?

Well, paragraph (32) of the recitals assists here:

"Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject's agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject's consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided."

So consent does not have to be written and signed but, if it is given orally. it does need to be recorded because art 7 (1) requires data controllers to be able to demonstrate that the data subject has consented to processing of his or her personal data. In answer to the other question, there is nothing in the GDPR that requires data controllers to mither their data subjects for confirmation of consent that they have already given for a specific purpose so long as the consent that they already have is genuine, informed and freely given.

A few other points to remember: -

• Art 6 (1) (a) requires consent to be given for one or more specific purposes. Data subjects must know exactly and precisely what they are consenting to.
• If a data subject's consent is given in the context of a written declaration which also concerns other matters, art 7 (2) requires any request for such consent to be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language.
• Art 7 (4) provides that "utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract" when assessing whether consent is freely given.

Readers should also remember that other rules in relation to consent apply in relation to children and young people and particularly sensitive categories of data which I shall discuss in future articles. In the meantime, if you have any questions in relation to consent, lawful processing, the GDPR or data protection generally, call me on 020 7404 5252 during office hours or send me a message through my contact form.

Further Reading

Date	Author and Title	Publication
1 Dec 2017	GDPR Index	NIPC Data Protection
11 Aug 2017	Data Protection Glossary	NIPC Data Protection

How the GDPR works

Author Mauro Cateb
Licence Creative Commons Attribution-Share Alike 3.0 unported

Jane Lambert

In my introduction to the GDPR 2 Dec 2017 I wrote that the regulation sought to balance two conflicting imperatives, namely the need to protect the public from the harm that can result from malicious, negligent or even careless processing of data that identifies living individuals and the need to safeguard free flows of such data for legitimate purposes.  As I also wrote in that article, there is nothing new about any of that. That policy is exactly the same as that of the Data Protection Directive, the Data Protection Act 1998, the Data Protection Act 1984, the Council of Europe Convention and the OECD Guidelines.

The GDPR also seeks to achieve that objective in much the same way as previous legislation.  It establishes a set of principles for processing personal data (data by which living human beings can be identified) and machinery for monitoring and enforcing compliance.  That machinery takes the form of rights for data subjects (the individuals who can be identified from the data) and obligations upon data controllers (those who control the processing of personal data) and processors (those who carry out the processing) to take reasonable steps to minimize the risk or effect of non-compliance.

The GDPR's data processing principles require personal data to be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);
(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89 (1), not be considered to be incompatible with the initial purposes (‘purpose limitation’);
(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);
(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89 (1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);
(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’)."

It is the data controller's duty to be responsible for and demonstrate compliance with those principles.

So long as data controllers and processors process personal data in accordance with those principles they are unlikely to go far wrong. However, if they stray from them, whether intentionally or not, they risk legal action in the civil courts or fines or other sanctions by the Information Commissioner or the equivalent supervisory authority of another EU member state.

As an obvious way round the legislation would be to export the data to a country that does not regulate the processing of personal data either at all or to the same extent and in the same way, the regulation restricts transfers of data abroad unless Commission is satisfied with the legal protection of personal data processing that is available in the recipient country or enforceable contractual arrangements are in place for the protection of such data. The GDPR makes clear that the regulation applies not just to data controllers and processors that are in the EU, but also to data controllers outside the EU which offer goods or services to data subjects in the EU or monitor the behaviour of such data subjects within the EU.

In the next few articles I shall drill down into each of those topics in more detail.  Should anyone wish to discuss this article, the GDPR or data protection generally, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

Further Reading

Date	Author and Title	Publication
2 Dec 2017	Jane Lambert Introduction to the GDPR	NIPC Data Protection
1 Dec 2017	GDPR Index	NIPC Data Protection
11 Aug 2017	Data Protection Glossary	NIPC Data Protection