The General Data Protection Regulation ("GDPR") is the primary legislation in Europe that significantly impacts all aspects of personal data processing. While the GDPR imposes significant changes on businesses, including monetary fines of up to 4% of global revenue or 20 million euros, it also expands the rights of data subjects, such as the "right to be forgotten". In this dynamic world where privacy is "by design", the guiding principle should be to provide individuals more control over their private data.
Given that explicit consent is the fundamental requirement for data processing, "legitimate interest" is one of the exceptions and the most flexible legal foundation for processing.
We are treating it with caution due to its flexibility and fragility! We closely monitor European governmental and independent regulatory agencies and have painstakingly adapted our operations to their standards.
An 'interest' can be regarded as 'legitimate' if the Controller can pursue it in a manner consistent with data security and other applicable laws.
Legitimate interest is defined in both Article 6 1(f) and Recital 47 of the GDPR. Recital 47 expressly states that marketing purposes can be legitimate: "...the processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate aim."
However, this does not imply that all processing for commercial reasons is permissible on this basis. You must still demonstrate that your processing meets the requirements for necessity and balance.
Given that people have an equal right to object to marketing strategies per Article 21(2), it becomes harder to pass the balancing test if you do not provide consumers with a clear choice to opt out of direct marketing at the time their information is collected (or in your initial communication with the subject, if the information was not gathered directly from them).
Legitimate interests may be your own or those of third parties. They can be commercial, individual, or societal in nature.
You must weigh your own interests against those of others. If they did not reasonably anticipate the processing or if it would result in unjustifiable harm, their interests are likely to take precedence over your legitimate interests.
Yes, this form of processing is also legal if legitimate interests justify it, but you must follow the three-part Legitimate Interest Assessment criteria.
Consider using legitimate interests as a legal justification for such processing. You must define the exact reason for which the processing is being carried out and ensure that the processing is genuinely essential for that purpose.
If you pass the first two components of the three-part test, you must also pass the balancing test. You may find it straightforward, as business contacts are more likely to reasonably anticipate processing their personal data in a commercial context, and the processing is less likely to have a significant impact on them personally.
For more information on the legitimate interest principle and its assessment test, which we have strictly followed and applied in our business operations, please refer to this guidance document or contact us via email.