The balancing test remains there for legitimate interests, under Article 6(1)(f).
Amendment 16 seeks to prevent organisations that undertake third-party marketing relying on the legitimate interest lawful ground under Article 6(1)(f) of the UK GDPR. As I have set out, organisations can rely on that ground for processing personal data without consent when they are satisfied that they have a legitimate interest to do so and that their commercial interests are not outweighed by the rights and interests of data subjects.
Clause 5(4) inserts in Article 6 new paragraph (9), which provides some illustrative examples of activities that may constitute legitimate interests, including direct marketing activities, but it does not mean that they will necessarily be able to process personal data for that purpose. Organisations will need to assess on a case-by-case basis where the balance of interest lies. If the impact on the individual’s privacy is too great, they will not be able to rely on the legitimate interest lawful ground. I should emphasise that this is not a new concept created by this Bill. Indeed, the provisions inserted by Clause 5(4) are drawn directly from the recitals to the UK GDPR, as incorporated from the EU GDPR.
I recognise that direct marketing can be a sensitive—indeed, disagreeable—issue for some, but direct marketing information can be very important for businesses as well as individuals and can be dealt with in a way that respects people’s privacy. The provisions in this Bill do not change the fact that direct marketing activities must be compliant with the data protection and privacy legislation and continue to respect the data subject’s absolute right to opt out of receiving direct marketing communications.
Amendment 17 would make sure that the processing of employee data for “internal administrative purposes” is subject to heightened safeguards, particularly when it relates to health. I understand that this amendment
relates to representations made by the National AIDS Trust concerning the level of protection afforded to employees’ health data. We agree that the protection of people’s HIV status is vital and that it is right that it is subject to extra protection, as is the case for all health data and special category data. We have committed to further engagement and to working with the National AIDS Trust to explore solutions in order to prevent data breaches of people’s HIV status, which we feel is best achieved through non-legislative means given the continued high data protection standards afforded by our existing legislation. As such, I hope that the noble Lord, Lord Clement-Jones, will agree not to press this amendment.
Amendment 18 seeks to allow businesses more confidently to rely on the existing legitimate interest lawful ground for the transmission of personal data within a group of businesses affiliated by contract for internal administrative purposes. In Clause 5, the list of activities in proposed new paragraphs (9) and (10) are intended to be illustrative of the types of activities that may be legitimate interests for the purposes of Article 6(1)(f). They are focused on processing activities that are currently listed in the recitals to the EU GDPR but are simply examples. Many other processing activities may be legitimate interests for the purposes of Article 6(1)(f) of the UK GDPR. It is possible that the transmission of personal data for internal administrative purposes within a group affiliated by contract may constitute a legitimate interest, as may many other commercial activities. It would be for the controller to determine this on a case-by-case basis after carrying out a balancing test to assess the impact on the individual.
Finally, I turn to the clause stand part debate that seeks to remove Clause 7 from the Bill. I am grateful to the noble Lord, Lord Clement-Jones, for this amendment because it allows me to explain why this clause is important to the success of the UK-US data access agreement. As noble Lords will know, that agreement helps the law enforcement agencies in both countries tackle crime. Under the UK GDPR, data controllers can process personal data without consent on public interest grounds if the basis for the processing is set out in domestic law. Clause 7 makes it clear that the processing of personal data can also be carried out on public interest grounds if the basis for the processing is set out in a relevant international treaty such as the UK-US data access agreement.
The agreement permits telecommunications operators in the UK to disclose data about serious crimes with law enforcement agencies in the US, and vice versa. The DAA has been operational since October 2022 and disclosures made by UK organisations under it are already lawful under the UK GDPR. Recent ICO guidance confirms this, but the Government want to remove any doubt in the minds of UK data controllers that disclosures under the DAA are permitted by the UK GDPR. Clause 7 makes it absolutely clear to telecoms operators in the UK that disclosures under the DAA can be made in reliance on the UK GDPR’s public tasks processing grounds; the clause therefore contributes to the continued, effective functioning of the agreement and to keeping the public in both the UK and the US safe.
For these reasons, I hope that the noble Lord, Lord Clement-Jones, will agree to withdraw his amendment.