GDPR for Sole Traders – Contract Lawful Basis

This entry is part 3 of 4 in the series GDPR for Sole Traders

Under GDPR a lawful basis is the justification to process personal data. While I’ve focused mainly on consent, as the easiest to understand, the others are worth looking at – and contract may be a better fit for much of the work that sole traders carry out. First, a quick examination of what the lawful bases mean and how you can apply them.

Essentially a lawful basis defines the purpose for which you’re holding the data, and provide different sets of rights for data subjects to allow for the different usage. Consent, for example, allows subjects to request erasure, to object to the storage of their data or processing for a specific purpose, and allows them to demand that any data held on them be exported and provided in a portable format. Obviously these rights are not suitable to all purposes.

The contract lawful basis allows for data subjects to object, which means that they can ask for you to stop processing their data for particular purposes. They cannot ask that you erase the data, nor that it be exported in a portable format (or rather they can ask for these things but you have a legal right to refuse). If they do ask that you stop processing their data for a specific purpose then you must comply – unless you have compelling legitimate reasons to process the data, or are doing so to establish, exercise or defend a legal claim (i.e. if a client has refused to pay, you would not have to stop processing their data in order to pursue payment).

In order to establish contract as a lawful basis you need to assess the data you are holding (most likely not much more than contact details), ensure you are only using it for that purpose (in order to negotiate or perform a contract), ensure you do not hold it longer than necessary (once the contract is complete if there are no legal reasons to hold onto it for a period of time, such as auditing or chasing payment, then you should delete it), and record that you are holding it under that basis. In most cases all you’d need would be a footer on e-mails explaining that you will hold and use contact information in order to negotiate and complete a contract, and will retain it for compliance with any applicable laws after the contract is complete.

If you want to use those contact details for any marketing either during or after the contract, then that would be a separate purpose (arguably you might be able to go for legitimate interest, but to be honest consent is far more suitable for this purpose) and you would need to inform the client and get their explicit consent for this. They would also need to be provided with a simple method to object (i.e. sign up to my mailing list for further details, followed by on each mailing an e-mail address to contact or link to click if they want to be removed).

As always, any questions please ask here, or via Twitter (I don’t mind dealing with private queries, but it’s easier to go through those two than answer the same questions several times). Also please remember if you have particular legal concerns then you should speak to an expert with insurance rather than leaning on this article for any legal opinion – I’m purely looking to clarify the available guidance and target it more appropriately at those who seem to have slipped under the ICO’s radar in terms of advice.