EU Com­mis­si­on: legi­ti­ma­te inte­rest inclu­des com­mer­cial interests

Appar­ent­ly the Dutch data pro­tec­tion aut­ho­ri­ty stan­dard­ly expres­sed the view that the legal basis of the legi­ti­ma­te inte­rest does not include purely com­mer­cial inte­rests.

The EU Com­mis­si­on has the­r­e­fo­re inter­ven­ed and has asked the aut­ho­ri­ty in a let­ter remin­ded that also the Eco­no­mic free­dom is a fun­da­men­tal right enshri­ned in the EU Char­ter, and that the GDPR also reco­gnizes (in reci­tal 4) that “the right to the pro­tec­tion of per­so­nal data […] is not an unli­mi­t­ed right” but that it must be “seen in the light of its socie­tal func­tion and weig­hed against other fun­da­men­tal rights in com­pli­ance with the prin­ci­ple of pro­por­tio­na­li­ty”. The strict inter­pre­ta­ti­on of the Dutch aut­ho­ri­ty pre­ven­ted such a balancing:

Against this back­ground, we invi­te the Dutch DPA to read­just the lan­guage of the stan­dard expl­ana­ti­on note to cle­ar­ly reflect that com­mer­cial inte­rests can be regard­ed as ‘legi­ti­ma­te’ inte­rests when (sub­ject to a con­cre­te balan­cing) they are not over­ridden by the fun­da­men­tal rights and free­doms of the data subject.

Howe­ver, the aut­ho­ri­ty does not seem to be impres­sed by this. The chair­man of the aut­ho­ri­ty has appar­ent­ly expres­sed his inten­ti­on not to join the commission.

This beca­me known via a report in a Dutch news­pa­per, about which again Hogan Lovells has reported.

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