The Lawful Basis for Processing: Selection and Challenges

Article 6 of the GDPR talks about the lawfulness Basis for processing. It states that:

1. Processing shall be lawful only if and to the extent that at least one of the following applies:
   1. When the data subject has consented to the processing of his or her personal data for one or more specific purposes;
   2. When 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;
   3. When processing is necessary for compliance with a legal obligation;
   4. When processing is necessary in order to protect the vital interests of the data subject or of another natural person;
   5. Where the 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;
   6. Where the 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.

Clause (f) shall not apply to processing carried out by public authorities in the performance of their tasks.

Selecting a lawful basis for processing personal data is a critical step in complying with data protection regulations such as the General Data Protection Regulation (GDPR) and can pose some challenges. Some of the challenges in selecting a lawful basis for processing include:

1. Identifying the most appropriate lawful basis: The GDPR provides six lawful bases for processing personal data, including consent, legitimate interests, contractual necessity, legal obligation, vital interests, and public interest. Determining which of these bases is most appropriate for a particular processing activity can be challenging.
2. Ensuring that the chosen basis is valid: Once a lawful basis has been identified, it must be valid under the GDPR. This means that the basis must be directly related to the processing activity, and the processing activity must be necessary to achieve the purpose for which the data was collected.
3. Documenting the chosen basis: Organizations must document their chosen lawful basis for processing personal data and keep a record of it. This can be challenging, especially for large organizations that process a significant amount of personal data.
4. Ensuring transparency: Organizations must be transparent about their chosen lawful basis for processing personal data. This means that they must provide clear and concise information to data subjects about how their personal data will be processed, including the lawful basis for processing.
5. Re-evaluating the chosen basis: Organizations must regularly re-evaluate their chosen lawful basis for processing personal data. If the basis is no longer valid or if there is a more appropriate basis available, the organization must switch to the new basis.

Overall, selecting a lawful basis for processing personal data can be a complex and challenging process. Organizations must carefully consider the GDPR requirements and ensure that they are transparent and accountable in their processing activities.