All that you need to know about lawful basis for processing data
The lawful bases for processing are set out in Article 6 of the UK GDPR. At least one of these must apply whenever you process personal data:
Consent: the individual has given clear consent for you to process their personal data for a specific purpose.
Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.
Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations).
Vital interests: the processing is necessary to protect someone’s life.
Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.
Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.)
How do you decide which lawful basis applies?
This depends on your specific purposes and the context of the processing. You should think about why you want to process the data, and consider which lawful basis best fits the circumstances.
You might consider that more than one basis applies, in which case you should identify and document all of them from the start.
You must not adopt a one-size-fits-all approach. No one basis should be seen as always better, safer or more important than the others, and there is no hierarchy in the order of the list in the UK GDPR.
Several of the lawful bases relate to a particular specified purpose – a legal obligation, performing a contract with the individual, protecting someone’s vital interests, or performing your public tasks. If you are processing for these purposes then the appropriate lawful basis may well be obvious, so it is helpful to consider these first.
In other cases you are likely to have a choice between using legitimate interests or consent.
Can you change your lawful basis?
You must determine your lawful basis before starting to process personal data. It’s important to get this right first time. If you find at a later date that your chosen basis was actually inappropriate, it will be difficult to simply swap to a different one. Even if a different basis could have applied from the start, retrospectively switching lawful basis is likely to be inherently unfair to the individual and lead to breaches of accountability and transparency requirements.
How should we document our lawful basis?
The principle of accountability requires you to be able to demonstrate that you are complying with the UK GDPR, and have appropriate policies and processes. This means that you need to be able to show that you have properly considered which lawful basis applies to each processing purpose and can justify your decision.
You need therefore to keep a record of which basis you are relying on for each processing purpose, and a justification for why you believe it applies. There is no standard form for this, as long as you ensure that what you record is sufficient to demonstrate that a lawful basis applies. This will help you comply with accountability obligations, and will also help you when writing your privacy notices.
It is your responsibility to ensure that you can demonstrate which lawful basis applies to the particular processing purpose.
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