Guide · Data & Privacy

Lawful basis and consent

Understand the seven lawful bases, when consent matters and why withdrawing consent does not resolve every dispute.

Consent is only one lawful basis. The correct challenge is to identify the purpose, the basis chosen before processing began and whether its conditions are actually met.

Key points

  • The post-DUAA UK GDPR has seven Article 6 lawful bases.
  • An organisation cannot always switch basis retrospectively to rescue unlawful processing.
  • Special category data needs an additional Article 9 condition.
  • Withdrawing consent stops consent-based processing, but not processing supported by a different valid basis.
  • Legitimate interests requires purpose, necessity and balancing; recognised legitimate interest is a distinct, narrower basis.

The seven bases

The bases are consent, contract, legal obligation, vital interests, public task, recognised legitimate interest and legitimate interests. “We need it” or “it is in our terms” is not itself a basis. Contract requires objective necessity for the contract, not mere usefulness. Legal obligation requires a relevant legal duty. Public task must rest on law. Ordinary legitimate interests requires a three-part assessment.

Consent and withdrawal

Valid consent must be freely given, specific, informed, unambiguous and capable of withdrawal as easily as it was given. Power imbalance can make consent inappropriate, particularly at work. Withdrawal is forward-looking and does not automatically make earlier lawful processing unlawful.

Legitimate interests after the DUAA

Ordinary legitimate interests still requires a purpose test, necessity test and balancing test. The DUAA added examples and a separate recognised-legitimate-interest basis for specified conditions. That separate basis still requires necessity, but not the ordinary balancing test. It is not a general shortcut and it does not remove transparency, fairness, security or rights duties.

Purpose by purpose

An organisation may need different bases for different purposes. A bank might use contract to operate an account, legal obligation for anti-money-laundering checks and legitimate interests for some fraud prevention. Ask for a purpose-by-purpose explanation and challenge the one that affects you.

Worked examples

What happenedThe data-protection questionLikely next route
An app says consent is mandatory for analyticsAsk whether the optional tracking is genuinely necessary and whether refusal is possible.Cookies, tracking and complaints
An employer relies on consent for routine monitoringExamine imbalance and whether another basis was actually chosen.Employment data and surveillance
A company says “legitimate interest” without analysisAsk for the interest, necessity and balancing rationale.Right to object

Useful wording

“For each purpose, please identify the Article 6 lawful basis selected, explain why the processing is necessary, and identify any Article 9 condition. If you rely on legitimate interests, please explain the interest, necessity and balancing assessment.”

Keep the request focused on the data or processing activity. Ask the organisation to identify its position and the corrective action it will take. Keep a copy and proof of delivery.