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Some thoughts on consent and legitimate interest under the GDPR

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Please note that some comments/thoughts are typical for Belgium (repealed legislation).

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Some thoughts on consent and legitimate interest under the GDPR

  1. 1. Some thoughts on consent and legitimate interest DPO Circle – Solvay Graduation Ceremony Brussels – 18 September 2018
  2. 2. CONSENT: WHAT’S NEW? • Consent • Reinforced definition of consent • Consent must be based on a declaration or affirmative action • Consent can still be implicit, except if based on omission • Prohibition on bundling consents • Separate consents for separate matters • Practical difficulty: data subject do not understand the need for multiple consents • Right to retract consent • Permanent uncertainty in relation to data processing activities • Consent has lost importance as basis for processing activities 2
  3. 3. CONSENT: FREQUENT MISTAKES • Mixing up consent under the GDPR with consents under separate legislation • Direct marketing by e-mail towards persons that are not customer requires consent (soft opt-in regime) • Separate consent and separate opt-out • Opt-out on data collection for direct marketing purposes is obsolete • First communication requires specific information to the data subjects • Bundling consents • Asking consent for privacy statements • Article 13 & 14 of the GDPR are unilateral information obligations
  4. 4. LEGITIMATE INTEREST: WHAT’S NEW? • Whose legitimate interest? • Controller or a third party • Data subject interests cannot be invoked • GDPR considerations identify several legitimate interests • Impact of legitimate interest on data subject rights • Exclusion of data portability • Right to object on specific grounds • Privacy statement requirements • Identify the invoked legitimate interest • Additional communication obligation • Mention the right to object in the first communication
  5. 5. LEGITIMATE INTEREST: FREQUENT MISTAKES • Balancing test must be in favour of controller • Not overridden = at least in balance • Consent under separate legislation excludes legitimate interest as a legal ground • Direct marketing legislation • Effect should be opposite: reasonable expectations • Legitimate interest is not identified in the privacy statement • A documented balancing test is not available • Freedom to undertake is a generic, low weight interest
  6. 6. HOW TO PERFORM A BALANCING TEST? • Step 1: Identifying the interests of the stakeholders • Identify the legitimate interests of the controller or the third party • Identify the fundamental rights and freedoms and interests of the data subject • Step 2: Assess the impact of the intended processing activity • Negative impact • Positive impact • Step 3: Assess the (provisional) balance • Step 4 (if step 3 is negative): include additional safeguards to ensure the balance between interests • Document balancing test, unless outcome is manifestly positive
  7. 7. STEP 1: THE INTERESTS TO BE ASSESSED • Identify controller and third party interests • Benefit derived from the processing activity • Typical examples • Direct marketing • Freedom to undertake (article III.2 of the Code of Economic Law) • Fraud detection and prevention • Whistleblowing schemes • Credit checks • Information security • Research purposes • Claims management and enforcement of claims • Publication of data for transparency and accountability • Legitimate interest
  8. 8. STEP 1: THE INTERESTS TO BE ASSESSED • Step 1: Identifying the fundamental rights and freedoms and interests of the data subject • Right to privacy • Right to protection of personal data • Right to liberty and security • Right of access to public documents • Right to freedom of expression and information • Right to property • Interest not to be harmed physically, psychologically and/or financially • No requirement of legitimate interests
  9. 9. STEP 2: ASSESSING THE IMPACT OF THE PROCESSING • Key criteria for impact assessment • Impact as such • Nature of the data • Data processing activities • Reasonable expectations • Status of the controller and the data subject • Specific focus on children and (implicitly) vulnerable data subjects
  10. 10. STEP 2: ASSESSING THE IMPACT OF THE PROCESSING • Impact of the processing activities • Impact ≠ harm • Impact = consequences of the processing • Negative and positive impact • Risk methodology • Likelihood • Severity • Quantitative approach? • Older guidance: no • Still relevant with broader right to object?
  11. 11. STEP 2: ASSESSING THE IMPACT OF THE PROCESSING • Likelihood • Negligible (1): threat does not appear possible or at least very unlikely to happen • Limited (2): difficult to realize threat • Significant (3): threat appears to be possible • Maximum (4): threat is easy to realize • Severity levels • Negligible (1): no effect on data subject or only minor inconvenience (e.g. waste of time, annoyance, …) • Limited (2): significant inconvenience (extra costs, loss of service, fear, serious stress, …) • Significant (3): significant consequences that data subjects may still overcome (consequences of identity theft, loss of employment, blacklisting, …) • Maximum (4): significant consequence that may be irreversible or that data subject cannot overcome (long-term illness, inability to work, irreversible blacklisting, …)
  12. 12. STEP 2: ASSESSING THE IMPACT OF THE PROCESSING • Nature of the personal data • Generic personal data • Public data • Highly sensitive personal data • Data processing activities • Scale • Combination of personal data • Publication of personal data • Disclosure to a large group of recipients
  13. 13. STEP 2: ASSESSING THE IMPACT OF THE PROCESSING • Reasonable expectations of the data subject • Expectations of the data subject are a key element in the balancing test: the more a data subject expects the processing, the more likely the processing will pass the balancing test • Status of the controller and the data subject • Mainly status of the data subject • Vulnerable data subjects • ‘Protected persons’, e.g. consumers, minors, … • Data subjects acting in a professional capacity
  14. 14. STEP 3: PROVISIONAL BALANCE • Outcome of the analysis of step 1 and 2 • At least a balance: no further steps required • Imbalance weighing against the controller: • Assess whether changes to the processing activity may result in a balance • Assess whether additional safeguards may be implemented to create a balanced situation • In short: reverse-engineer to obtain a balance or abandon legitimate interest as legal ground
  15. 15. STEP 4: ADDITIONAL SAFEGUARDS • Provisional balance is negative: implement additional safeguards • Increased transparency • Additional data subject rights • Removing conditions for data subject rights • Facilitating access to data subject rights • Asking consent? • Privacy enhancing technologies, privacy by design, data protection impact assessments? • Data obfuscation?
  16. 16. DATA SUBJECT RIGHTS • Right to object • General right to object • Applies to all purposes but only when specific legal grounds are invoked • Specific right to object to processing of personal data for marketing purposes (“opt-out”) • Applies only to direct marketing purposes irrespective of the legal ground • Transparency obligation • Article 13 and 14 GDPR: existence of these rights • Article 21 GDPR: “confirmation” of the existence of these rights • At the latest at the time of the first communication • Explicit confirmation • Clear and separate from any other information
  17. 17. DATA SUBJECT RIGHTS • General right to object • Grounds relating to his or her particular situation • Restricted to certain legal grounds for processing • General interest • Legitimate interest • No automatic application • Data subject has to adduce evidence of grounds relating to his particular situation • Controller may override • Compelling legitimate grounds • Establishment, exercise or defence of legal claims
  18. 18. DATA SUBJECT RIGHTS • Specific right to object to processing of personal data for marketing purposes • Limited to marketing purposes • No restrictions in terms of legal grounds for processing • No further conditions • At any time • Free of charge • No reasons required
  19. 19. CONCLUSION ❖ Major changes to the definition of consent ❖ Subtle impact on processing activities ❖ Right to withdraw consent severely restricts the use of consent as a legal ground ❖ Subtle changes to legitimate interest ❖ Major impact on processing activities based on legitimate interest ❖ Easier objection = more success in balancing test? ❖ Changes in transparency requirements for indirect data collection facilitates legitimate interest and indirect data collection (e.g. data brokerage) 19
  20. 20. USE CONSENT OR USE LEGITIMATE INTEREST? … THAT’S NOT EVEN A QUESTION. Johan Vandendriessche ICT & Data Protection Lawyer | Partner | External DPO| Erkelens Law Visiting Professor ICT and Data Protection Law | UGent | HoWest Guest Lecturer Information Security Law | Solvay Brussels School johan.vandendriessche@erkelenslaw.com +32 486 366 234 www.erkelenslaw.com

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