The Article 29 Working Party has published an opinion on the notion of legitimate interests of the data controller under Article 7(f) of the Data Protection Directive (95/46/EC). The opinion provides guidance on how to apply Article 7(f) under the current legal framework and makes recommendations for future improvements. The legitimate interest condition is one of six legal grounds on which EU data controllers can justify their data processing activities and requires a balancing of the legitimate interests of the controller, or any third parties to whom the data are disclosed, against the interests or fundamental rights of the data subject (see Practice note, Overview of EU data protection regime: Justification for processing).

The Working Party makes it clear that while the condition should not be treated as "a last resort" for rare or unexpected situations where other grounds for legitimate processing may not apply, it should also not be automatically chosen, or its use unduly extended, on the basis of a perception that it is less constraining than the other grounds. The opinion addresses in some detail the factors that should be considered when carrying out the balance of interest test. It also includes a useful list of practical examples designed to illustrate the application of the test.

Going forward, the Working Party recommends incorporating two new recitals into the draft Data Protection Regulation proposed by the European Commission in January 2012. They should include the key factors to consider when applying the balancing test, and a requirement for data controllers to document their assessment in the interests of greater accountability. Finally, the Working Party supports a new substantive provision requiring controllers to explain to data subjects why they believe their interests would not be overridden by the data subject's interests, fundamental rights and freedoms. For information about the proposed Data Protection Regulation see Practice note, EU data protection regime proposals: analysis and noter-up).

Source: Article 29 Working Party opinion 06/2014 (WP2017), 9 April 2014.