As a website owner, you might process user data to prevent fraud or improve user experience without needing consent – this is considered “legitimate interest.”
In October 2024, the European Data Protection Board (EDPB) released Guidelines 1/2024 on processing personal data based on Article 6(1)(f) GDPR, known as the legitimate interest basis. These guidelines emphasize the need to carefully assess and document when legitimate interest can be used for personal data processing.
For website owners, this directly affects consent management, analytics, and tools like Meta Pixel, which track user behavior. While GDPR permits processing based on legitimate interest, the ePrivacy Directive imposes stricter rules when accessing users' devices (e.g., cookies).
Three Conditions for Legitimate Interest;
Website owners must meet three conditions to rely on legitimate interest:
- Pursuit of a legitimate interest: The interest must be lawful, specific, and articulated (e.g., improving security).
- Necessity of processing: Processing must be necessary to achieve the legitimate interest.
- Balancing test: Fundamental rights and freedoms of the data subject must not override the interest pursued.
What Legitimate Interest Can Be Used For
Legitimate interest is a flexible legal basis that can be used for a variety of processing activities, provided that the conditions are met and the rights of data subjects are respected. Some common scenarios where legitimate interest may be applicable include:
- Fraud Prevention and Security: Website owners may process personal data to detect and prevent fraud or ensure the security of their services. For instance, monitoring login attempts to identify suspicious activity can be a legitimate interest.
- Direct Marketing: Processing personal data for direct marketing purposes, such as sending promotional emails to customers, can be considered a legitimate interest. However, users must be provided with an easy way to opt out of such communications.
- Customer Relationship Management (CRM): Maintaining customer records for customer service purposes, such as tracking interactions or providing support, can be done under legitimate interest, provided it does not override the individual's privacy rights.
- Employee Monitoring: Monitoring employee performance or ensuring compliance with workplace policies can be a legitimate interest, provided it is proportionate and employees are informed.
- Business Improvement and Analytics: Processing data to improve products, services, or user experience, such as analyzing user feedback or website performance, can fall under legitimate interest, as long as it meets the balancing test.
ePrivacy Directive and Consent Requirement
Under Article 5(3) of the ePrivacy Directive, accessing or storing information on users' devices (e.g., cookies) requires explicit consent, unless it is strictly necessary for a requested service (e.g., saving cart items).
Practical Examples for Website Owners
1. Consent Management and Analytics
- Google Analytics: Even if improving services via analytics serves your legitimate interest, Article 5(3) of the ePrivacy Directive requires explicit consent before placing cookies. A consent banner is mandatory for compliance.
- Detailed Scenario: Suppose a website uses Google Analytics to understand user behavior and improve content. While the site owner may argue that this analysis is in their legitimate interest to enhance user experience, the ePrivacy Directive mandates obtaining explicit consent before placing tracking cookies on users' devices.
- Takeaway: Legitimate interest for analytics does not exempt you from consent requirements under the ePrivacy Directive.
2. Meta Pixel and Targeted Advertising
- Meta Pixel: Tracking users across websites for targeted ads cannot solely rely on legitimate interest. Explicit consent is required since third-party cookies are used for cross-site tracking.
- Detailed Scenario: A retail website installs Meta Pixel to track visitors and send them targeted ads on Facebook. The website owner may believe that targeted advertising is in their legitimate interest for better marketing efficiency. However, as cross-site tracking is involved, explicit user consent must be obtained to comply with the ePrivacy Directive.
- Takeaway: Meta Pixel requires explicit user consent, even if legitimate interest could be claimed under GDPR.
3. First-Party Analytics
- AesirX Analytics: While first-party analytics reduce privacy risks, consent is still necessary if cookies or local storage are involved.
- Detailed Scenario: A website switches to AesirX Analytics to reduce dependency on third-party tracking. Despite using first-party data, explicit consent is still required if cookies are placed or data is stored locally on users' devices.
- Takeaway: First-party solutions offer better control but do not eliminate the need for consent.
4. Email Marketing and User Segmentation
- Newsletter Subscription: Sending targeted email campaigns based on user activity can be seen as a legitimate interest. However, segmentation based on behavior tracked through cookies still requires explicit consent under the ePrivacy Directive.
- Detailed Scenario: A business sends personalized newsletters based on users' browsing history on its website. While email marketing might serve a legitimate interest, tracking user behavior to segment the audience involves cookies that require explicit consent.
- Takeaway: Consent is needed for tracking-based segmentation, even if the emails themselves serve a legitimate interest.
5. Customer Support Chatbots
- Chatbots: Using chatbots to provide customer support may fall under legitimate interest, but storing chat interactions or analyzing user behavior for improvements involves data processing that may require explicit consent.
- Detailed Scenario: A website uses a chatbot for customer inquiries and stores user interactions to improve support quality. While the use of a chatbot may be considered a legitimate interest, storing and analyzing these conversations necessitates explicit user consent to comply with data protection regulations.
- Takeaway: While chatbots can be used for legitimate interests like improving customer support, consent is required for storing or analyzing conversations.
Key Considerations for Website Owners
- Balancing Test: Evaluate user expectations and risks to privacy when relying on legitimate interest.
- Transparency: Clearly inform users about the data being collected, why it's collected, and how they can object.
- Documenting Legitimate Interest: Properly document why processing is necessary and the safeguards in place. Include an assessment of privacy risks in your Data Protection Impact Assessment (DPIA).
Legitimate Interest Isn't a Free Pass
The EDPB’s guidelines make it clear that legitimate interest is not a blanket legal basis, particularly for accessing users’ devices. Website owners must tread carefully, understanding that compliance with both GDPR and the ePrivacy Directive is about more than just ticking boxes – it's about building user trust. Recognize when consent is mandatory, document legitimate interests meticulously, and be proactive in balancing privacy with business needs.
By prioritizing transparency, actively obtaining consent, and regularly reviewing data practices, businesses can stay ahead of regulatory scrutiny and foster genuine user loyalty in a privacy-first world.
Ronni K. Gothard Christiansen // VikingTechGuy
Creator, AesirX.io
Short Summaries on Recent rulings from CJEU:
Case C‑621/22 (KNLTB vs. Autoriteit Persoonsgegevens)
Case C‑200/23 (OL and the Bulgarian Registration Agency)
Case C‑446/21 (Maximilian Schrems and Meta Platforms Ireland Ltd)
AesirX Privacy Scanner for WordPress:
Check your WordPress site complies with the ePrivacy Directive and GDPR by using AesirX Privacy Scanner, which detects non-compliant elements like cookies and trackers.
