Re: Fwd: Re: Taxonomy of legal bases

Thanks Eva, that clears up (and shows my lack of legal knowledge *gulp*)
So we will add to the spreadsheet the terms as listed in 
https://lists.w3.org/Archives/Public/public-dpvcg/2019Apr/0089.html with 
the change in description as suggested by Bud and Eva regarding valid 
and explicit consent.

On 09/04/2019 14:29, Eva Schlehahn wrote:
> Hi Harsh, hi all,
> 
> I agree with Bud that your solution might cause misunderstanding in 
> terms of validity of the consent because this is always required. :)
> 
> If you read the GDPR text for  A22(2)(c) and A49(1)(a) carefully, you 
> will see that the give not the permission to process this data, but only 
> impose additional conditions because of the higher risk.
> 
> Let me explain a little bit what I mean:
> 
> The GDPR in principle imposes a general prohibition to process personal 
> data, unless you have a permission. This prohibition with permission 
> reservation is expressed clearly in Art. 6 and in Art. 9 , whereas both 
> Articles then enlist the legal bases that constitute a permission.
> 
> I am citing the relevant parts of these two articles to illustrate this 
> (bold highlights by me):
> 
> _Art. 6 para 1: _
> 
>      '/1. Processing //*shall be lawful only if and to the 
> extent*//*that*//at least one of the following applies:/' -> *[list of 
> legal bases follows]*
> 
> _Art. 9 para 1 and 2:_
> 
>      '/1. Processing of personal data revealing [...here catalogue of 
> special categories...] //*shall  be prohibited.*/
> 
> /    2. //*Paragraph 1 shall not apply if *//one of the following 
> applies:/' *[list of legal bases follows]*
> 
> A22(2)(c) and A49(1)(a) have no such a general rule - exception because 
> of permission expression in them. They just express that a certain 
> modality of the consent (laid down in Art 6+9) is needed in specific 
> cases (namely automated decisions/profiling, absence of adequacy 
> decision, absence of appropriate safeguards like BCR etc...). So you can 
> just believe me that they are indeed NOT legal bases by themselves. :)
> 
> Greetings,
> 
> Eva
> 
> Am 09.04.2019 um 14:10 schrieb Harshvardhan J. Pandit:
>> Okay. So our terms will be -
>> A6(1)(a)-non-explicit-consent
>>     legal basis where valid explicit consent is NOT required
>> A6(1)(a)-explicit-consent
>>     legal basis where valid explicit consent IS required
>>
>> as not -
>> A6(1)(a)
>>     legal basis where valid consent is required
>> A6(1)(a)-explicit-consent
>>     legal basis where valid explicit consent is required
>>
>>> One additional comment with regard to Art. 22 para 2 (c) and Art. 49 
>>> para. 1 (a) GDPR - these are NOT legal bases on their own! Rather, 
>>> they describe situations where e.g. consent based on Art. 6 para 1 
>>> (a) is possible, but which trigger the additional condition that it 
>>> needs to be the explicit version of this consent.
>> I'm curious - why is A9(2)(a) treated as a legal basis but not 
>> A22(2)(c) and A49(1)(a) ?
>> Doesn't A9 also state conditions where the explicit version of consent 
>> in A6(1)(a) is needed? i.e. use of special categories of personal data
>>
>> In my mind, I'm seeing this as -
>> ------------------------------------------------------------------
>> consent for:     legal basis       special case       legal basis
>> ------------------------------------------------------------------
>> personal data      A6(1)(a)     special categories       A9(2)(a)
>> ------------------------------------------------------------------
>> data transfer      A6(1)(a)   third country transfer    A49(1)(a)
>> ------------------------------------------------------------------
>> Of course there are more conditions to A49 such as safeguards etc.
>>

-- 
---
Harshvardhan Pandit
PhD Researcher
ADAPT Centre
Trinity College Dublin

Received on Tuesday, 9 April 2019 13:33:36 UTC