Lawful basis for processing personal data
In order to process personal data, the School needs to identify a lawful basis as set out in the General Data Protection Regulation. One or more lawful basis from Article 6 is required for all personal data. One or more lawful basis for processing from Article 9 for special categories personal data.
Definitions
Personal data: information about or that identifies a living individual
Special categories personal data: information that is about race/ethnicity,
Processing personal data: ‘any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction’. (Article 4(2))
Lawful bases in Article 6, Section 1
a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
Consent has to be unambiguous. Data subjects have to know what they are consenting to. Consent can be withdrawn at any time.
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;
We enter into contracts with suppliers, but also with students as we are supplying them an educational service and with staff to provide that educational service and other support services.
c) processing is necessary for compliance with a legal obligation to which the controller is subject;
This lawful basis allows the School to process personal data if we are legally required to e.g. taxation.
d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;
The Information Commissioner’s Office defines ‘vital interests’ as a medical emergency, but data subjects can have other vital interests, for example, did they attend the School or not. If we don’t confirm, they could lose a job.
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;
There is still some argument as to what a task carried out in the public interest would be for universities. Some have argued that it covers only where we have legal powers e.g. relating to immigration status. Others have argued that as a public authority it could potentially cover all the personal data we process. It is likely that it will cover processing relating to teaching, learning and research.
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.
Legitimate interests cannot be used by public authorities, though it may be available if a public authority processes data for purposes other than their public tasks. A legitimate interest can include the right to let people know about your products, to raise money from data subjects to support your organization, etc.
Lawful bases in Article 9, Section 2
Notes have been provided where required for these lawful bases.
a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes,
Consent has to be explicit for special categories data. This is one reason most collections of this category of data include a ‘Not provided’ option.
b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law;
This would cover processing special categories personal data for employment and other legal reasons e.g. the Equality Act.
c) processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent;
Covers the transfer of personal data if the data subject is unconscious or too young to give consent.
d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;
Covers processing of trade unions, political parties, churches and other organisations of that nature.
e) processing relates to personal data which are manifestly made public by the data subject;
It has to be the data subject who made it public e.g. if someone is using a photo for publicity purposes, you could guess their ethnicity/race.
f) processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;
g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;
Exactly what substantial public interest is is still a subject of debate in the House of Lords. But it is likely to cover corruption, law breaking etc where there is a public interest that requires the processing of personal data. Public health is covered by j).
h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;
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 quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;
j) processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.