Great analysis, Phil.
My cursory research before sending that previous message gave the impression that the GDPR and ICO had moved to lawful basis for the processing condition and legal basis for the legal principle underpinning the condition, but it seems I am neither completely wrong nor right this time!
Dan
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 03 October 2018 11:08
To: [log in to unmask]
Subject: Re: [data-protection] Legal basis for investigations
On reviewing this thread I was struck again by Dan's comment: "In my defence: although the language used is technically correct, it's still fairly common to refer to the processing condition (lawful basis) as the legal basis. I suppose it didn’t ought to be. "
The problem is that it is - officially. We cannot really make that distinction consistently. Granted recitals 40 and 41 appear to make a distinction but the elephant is that Art 13(1)(c) and Art 14(1)(c) both use "legal basis" and it appears to be common ground that this means the lawful ground under Article 6.
ICO Checklist on Art 13 actually says you must give "The lawful basis for the processing" when GDPR says "legal basis".
On the other hand the EU DP Handbook consistently refers to the Art 6 conditions as "legal basis" e.g. "No additional legal basis, such as consent of the data subjects, is needed", "any new purpose of processing will require a separate new legal basis." etc. etc. etc.
So "legal basis" IS technically correct usage for the processing condition. It can mean two different things depending on context - the lawful basis under Art 6(1) or the specific law under Art 6(3). We can try to follow ICO by using "lawful basis" for the first but no surprises when we get to cross purposes when both meanings are used in the same question.
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