Title: .B.4. THE RIGHT TO OBJECT TO THE PROCESSING IN CERTAIN CIRCUMSTANCES

The data subject has the right to object at any time to the processing of data relating to him at least in the following three situations (article 14): (1) when 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 or in a third party to whom the data are disclosed; (2) when processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed. However, save when otherwise provided by national law, the data subject can only object to processing of data concerning him in these first two situations when he gives proof of a justified objection, an objection “on compelling legitimate grounds relating to his particular situation”, and (3) when the controller anticipates personal data being processed for the purposes of direct marketing.

It is not clear today if the provision of goods and services is included in direct marketing. Is direct marketing only understood as the “promotion” of goods and services, or does it also apply to the delivery of goods and services itself? And secondly, if this is the case, does the right to object only apply if the provision of goods and services is commercial? The difference between group and personal profiling could be relevant here. There are arguments to claim that personalised profiling enables “direct” marketing (“direct” here meaning directly towards a particular individual) while group profiling does not necessarily enable such direct marketing. On the other hand, when a group profile is applied, this will affect the person targeted, even if the marketing is directed towards a category of persons.