Article 6 of the General Data Protection Regulation (GDPR) is a legal provision governing the lawfulness of data processing. It plays an important role in the GDPR because it specifies when data collection is permissible. It states:
1. Processing shall be lawful only if and to the extent that at least one of the following applies:
| (a) | the data subject has given consent to the processing of his or her personal data for one or more specific purposes; |
| (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; |
| (c) | processing is necessary for compliance with a legal obligation to which the controller is subject; |
| (d) | processing is necessary in order to protect the vital interests of the data subject or of another natural person; |
| (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; |
| (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. |
Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.
2. Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for compliance with points (c) and (e) of paragraph 1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing including for other specific processing situations as provided for in Chapter IX.
3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:
| (a) | Union law; or |
| (b) | Member State law to which the controller is subject. |
The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing such as those for other specific processing situations as provided for in Chapter IX. The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued.
4. Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject's consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1), the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia:
| (a) | any link between the purposes for which the personal data have been collected and the purposes of the intended further processing; |
| (b) | the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller; |
| (c) | the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to Article 9, or whether personal data related to criminal convictions and offences are processed, pursuant to Article 10; |
| (d) | the possible consequences of the intended further processing for data subjects; |
| (e) | the existence of appropriate safeguards, which may include encryption or pseudonymisation. |
Comments
Many websites offer “payment with data,” whereby you either agree to everything (and thus pay with your data) or pay money for a subscription. This type of payment is subject to the provisions of Section 327 of the German Civil Code (BGB). This is then considered a consumer contract with all the associated obligations of the responsible party.
The EU Advocate General stated that processing can only be considered necessary if there is no less intrusive means available. It is therefore less important whether a contract (Art. 6(1)(b) GDPR) mentions that a certain type of processing takes place (final opinion of September 20, 2022 – C-252/21, para. 54).
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Article 6(1) is particularly relevant and is frequently cited. Essentially, there are three legal bases for processing data in practice:
- Performance of a contract. Example: In order to deliver a postal item, the address must be known.
- Legitimate interest. Example: Cookies may be used to store the status of a logged-in user. Legitimate interest cannot simply be cited and claimed as a given. Rather, it is a matter of verification.
- Consent: The person concerned has given their consent. Everyone is familiar with this from those annoying consent requests on websites, which, incidentally, are almost all illegal.
Occasionally, a legal obligation applies, for example when storing documents that are relevant for tax returns.
Direct advertising cannot be justified by a legitimate interest. This was established, for example, by the Higher Administrative Court of Saarlouis in its decision of February 16, 2021 (see, for example, paras. 34 and 35). Among other things, the decision quotes the lower court, which stated the following, which the Higher Administrative Court confirmed in its ruling: “The processing of personal data for the purpose of direct advertising can be considered processing that serves a legitimate interest. However, it is not sufficient for the controller to have an economic or non-material interest in benefiting from the processing. Rather, the interest in the processing must be a legitimate interest.”
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