First thoughts on the CJEU’s Mousse judgment (“is Mr/Mrs necessary?”): (i) alternative apparently required to each personalisation; (ii) data minimisation is inherent to the assessment of (strict) necessity; (iii) the risk of discrimination has an impact on a legitimate interest assessment.
I’ll focus for now on (i).
The CJEU appears to require the offering of a personalised service to also include a default, non-personalised service. Paragraphs 33-34 repeat the idea that the controller “must therefore be able to demonstrate how the main purpose of the contract could not be achieved in the absence of such processing” and that the processing must be “essential for the proper performance of the contract between the data subject and the controller, and that there are no other feasible and less intrusive solutions”.
Expanding up on the Bundeskartellamt judgment, the CJEU states that “the personalisation of content does not appear necessary to offer services to a customer when these services can, where applicable, be provided in the form of an equivalent alternative that does not involve such personalisation, so that the latter is not objectively indispensable for a purpose that is an integral part of the said services” [para. 38].
Next, given that the controller here already made use of inclusive communication writing style (“client.e.s” to cover various genders), this was used against them to show there was no necessity in that respect.
I’m not entirely at ease with this approach, as it suggests a more abstract approach to the assessment of what is the service, but at least the expression “does not appear necessary” is used rather than “is not necessary” – emphasising the importance of properly documenting your own assessment of necessity regarding contract as a legal ground.
[The reasoning on legitimate interests is another thing altogether – I’m not keen on the CJEU’s interpretation of strict necessity there. I’ll give it some further thought before posting additional thoughts.]
Judgment (currently only in French): https://lnkd.in/eW7qXQ3t