Article 6 of the GDPR states as follows:
- Processing shall be lawful only if and to the extent that at least one of the following applies:
(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
(c) processing is necessary for compliance with a legal obligation to which the controller is subject;
(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
For most businesses that sell goods and services, the only possible operative exceptions are (a) and (f), the latter of which being the legitimate interest exception, and the best thinking on this subject says that few foreign businesses can use (f). There are several compelling reasons why, with one of the most serious “reasons” being Article 3 of the GDPR, which reads:
“This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to:
(a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
(b) the monitoring of their behaviour as far as their behaviour takes place within the Union.”
In short, Article 3 says the interests of the controller come second to the individual’s fundamental rights in the case of offerings of goods or services, or monitoring of behavior,
