Guidelines 02/2019 on processing of personal data under 6(1)(b) GDPR in the context of the provision of online services to data subjects

Section 2.2  Interaction of Article 6 (1)(b)with other lawful bases for processing

17. Where processing is not considered ‘necessary for the performance of a contract’, i.e. when a requested service can be provided without the specific processing taking place, the EDPB recognises that another lawful basis may be applicable, provided the relevant conditions are met. In particular, insome circumstances it may be more appropriate to rely on freely given consent under Article 6 (1)(a). In other instances, Article 6 (1)(f) may provide a more appropriate lawful basis for processing. The legal basis must be identified at the outset of processing, and information given to data subjects in line with Articles13 and 14 must specify the legal basis.

18. It is possible that another lawful basis than Article 6 (1)(b) may better match the objective and context of the processing operation in question. The identification of the appropriate lawful basisis tied to principles of fairness and purpose limitation.

19. The WP29 guidelines on consent also clarify that where “a controller seeks to process personal data that are in fact necessary for the performance of a contract, then consent is not the appropriate lawfulbasis”. Conversely, the EDPB considers that where processing is not in fact necessary for the performance of a contract, such processing can take place only if it relies on another appropriate legalbasis.

20. In line with their transparency obligations, controllers should make sure to avoid any confusion as towhat the applicable legal basis is. This is particularly relevant where the appropriate legal basis is Article 6 (1)(b) and a contract regarding online services is entered into by data subjects. Depending on the circumstances, data subjects may erroneously get the impression that they are giving their consent in line with Article 6 (1)(a) when signing a contract or accepting terms of service. At the same time, a controller might erroneously assume that the signature of a contract corresponds to a consent in the sense of article 6(1)(a). These are entirely different concepts. It is important to distinguish between accepting terms of service to conclude a contract and giving consent within the meaning of Article 6 (1)(a), as these concepts have different requirements and legal consequences.

21. In relation to the processing of special categories of personal data, in the guidelines on consent, WP29 has also observed that:

• Article 9 (2) does not recognize ‘necessary for the performance of a contract’ as an exception to the general prohibition to process special categories of data. Therefore controllers and Member States that deal with this situation should explore the specific exceptions in Article 9 (2) subparagraphs (b) to (j). Should none of the exceptions (b) to (j) apply, obtaining explicit consent in accordance with the conditions for valid consent in the GDPR remains the only possible lawful exception to process such data.