It is true that the GDPR is prescriptive, although also rather open-ended (hence our current pickle).  But regardless of the term we use, don’t we arrive at the same place:  which is that if something that requires a legal basis is done without one, it will be unlawful?  Using Kathy’s example, if data is processed without complying with minimization or purpose principles, will such processing not run afoul of the law, and hence be unlawful? 

 

There are important distinctions between the meaning of “legal basis” which implies that a law requires something to be affirmatively present, versus “lawful”, which means that something is not prohibited by law.  Ultimately though, isn’t “lawfulness”, the same end point, regardless? 

 

 

I do not see how. Kathy's analysis seems sound. The flexibility within the GDPR still only allows processing in very specific cicumstances, all of which are listed in the GDPR.

 

Kathy’s analysis breaks down on a practical level when one looks at the GDPR and what it says about when data can be processed.  The GDPR allows for flexibility for what can be processed and when, and kathy’s analysis overlooks that point.

 

From: gnso-rds-pdp-wg [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Kathy Kleiman
Sent: Thursday, February 8, 2018 7:07 PM
To: gnso-rds-pdp-wg@icann.org
Subject: Re: [gnso-rds-pdp-wg] Legal basis vs. lawful

 

Tx for the invitation to join, Chuck, and following up on the discussion of Sam and Tapani, let me add that criteria for processing must be clearer than something broadly within ICANN's mission statement and something permissible somewhere. The requirements under law are express and concrete.

Specifically, GDPR Article 5(1)(b and c) states:

Personal data shall be:
2.    "collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes" (the "purpose limitation") AND
3.    "adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed" (the "data minimisation" requirement).  [underline added]

Thus, our first criteria of "consistent with ICANN's mission," is only the first step and we need to go further than even the 3 criteria we are discussing..

Second, lawful and legal enter us into a debate over words and I have to agree with Sam and Tapani's analysis and let me add some of my own.

"Legal" is the term we use for actions expressly allowed under law. How we process personal data under the GDRP falls into this category -- of processing expressly allowed under law. Whereas the term lawful is used for a much broader category of actions which are generally permissible and allowable.

The term "legal" is much more consistent with our criteria statement because the processing of personal data by ICANN must clearly have a valid legal basis as expressly defined by data protection laws.

Best regards,
Kathy

On 2/7/2018 10:53 AM, Sam Lanfranco wrote:

Thanks Tapani,

I will extract from your longer message.
I deliberately kept my brief and less technical.
I think we are in agreement here and I support your position.

On 2/7/2018 1:07 AM, Tapani Tarvainen wrote:

The key distinction, as I understand it, is that "lawful" would be
 defined by the negative, everything that some law does not prohibit,

where as "legal basis" is defined by the positive, only things whose
justification can be explicitly derived from law.

  <......>

So I would prefer "legal basis" specifically in this sense: that any processing
 would have to be explicitly based on one of the criteria, or bases, as listed
in GDPR Article 6, or similar explicit justification in other data protection legislation.

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