For processing to be lawful under the GDPR, you need to identify a legal basis before you can process personal data. These are often referred to as the “conditions for processing” under the DPA.
It is important that you determine your legal basis for processing personal data and document this.
This becomes more of an issue under the GDPR because your legal basis for processing has an effect on individuals’ rights. For example, if you rely on someone’s consent to process their data, they will generally have stronger rights, for example to have their data deleted.
The GDPR allows member states to introduce more specific provisions in relation to Articles 6(1)(c) and (e):
“(c) processing is necessary for compliance with a legal obligation”;
“(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.”
These provisions are particularly relevant to public authorities and highly regulated sectors.
The tables below set out the legal bases available for processing personal data and special categories of data.
|Lawfulness of processing conditions|
|6(1)(a) – Consent of the data subject|
|6(1)(b) – Processing is necessary for the performance of a contract with the data subject or to take steps to enter into a contract|
|6(1)(c) – Processing is necessary for compliance with a legal obligation|
|6(1)(d) – Processing is necessary to protect the vital interests of a data subject or another person|
|6(1)(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|
6(1)(f ) – Necessary for the purposes of legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject.
Note that this condition is not available to processing carried out by public authorities in the performance of their tasks.
|Conditions for special categories of data|
|9(2)(a) – Explicit consent of the data subject, unless reliance on consent is prohibited by EU or Member State law|
|9(2)(b) – Processing is necessary for carrying out obligations under employment, social security or social protection law, or a collective agreement|
|9(2)(c) – Processing is necessary to protect the vital interests of a data subject or another individual where the data subject is physically or legally incapable of giving consent|
|9(2)(d) – Processing carried out by a not-for-profit body with a political, philosophical, religious or trade union aim provided the processing relates only to members or former members (or those who have regular contact with it in connection with those purposes) and provided there is no disclosure to a third party without consent|
|9(2)(e) – Processing relates to personal data manifestly made public by the data subject|
|9(2)(f) – Processing is necessary for the establishment, exercise or defence of legal claims or where courts are acting in their judicial capacity|
|9(2)(g) – Processing is necessary for reasons of substantial public interest on the basis of Union or Member State law which is proportionate to the aim pursued and which contains appropriate safeguards|
|9(2)(h) – Processing is necessary for the purposes of preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or management of health or social care systems and services on the basis of Union or Member State law or a contract with a health professional|
|9(2)(i) – Processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of healthcare and of medicinal products or medical devices|
|9(2)(j) – Processing is necessary for archiving purposes in the public interest, or scientific and historical research purposes or statistical purposes in accordance with Article 89(1)|