Peter's point is a valid one but on balance I stand by my previous post.
As I have suggested in other contexts on this list I find the whole consent - freely given - detriment issue to be one of the most difficult to apply to the real world and I hope that at some stage EPDB will revisit this. In a very real sense almost any "consent" scenario could fail the detriment test.
I want something. To get it I am asked for consent. If I withhold I do not get it. Therefore I suffer detriment in not getting what I wanted. Therefore consent can never be a valid legal basis.
So in the real world as a DPO having to advise I need to rationalise. Sometimes I might say "that's not detriment, just inconvenience". An example might be asking a GP's patients to use a new external prescription re-ordering service. If they do not agree to the necessary sharing of PD they have to use the old service. This is less efficient - may mean holding for 10 minutes on the surgery phone queue etc. But they will still get a repeat prescription, No 'detriment' , just 'inconvenience' so consent is the right and valid basis.
For references if the subject has a free choice as to who to give as referees detriment may be hard to find. If the choice is limited e.g. must be last employer and subject would prefer not I might rationalise that it would not be the withholding of consent that causes the detriment but the fact that there is something subject does not want disclosed - whichever basis is used..
So as of today I still think consent is the right basis here. I may be wrong. If it is not is there a workable alternative? In the sort of cases we are thinking about is legitimate interest practicable given the need to do the balancing exercise in each case which raises pretty much the same issues?
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