Article 17 📖 GDPR. Right to erasure ('right to be forgotten')

Article 17 GDPR. Right to erasure (‘right to be forgotten’)

1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

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Siarhei Varankevich CIPP/E, CIPM, MBA, FIP

Co-Founder & CEO of Data Privacy Office LLC. Data Protection Trainer and Principal Consultant

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(a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;

Article 6 GDPR. Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

[…]

Article 9 GDPR. Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

2. Paragraph 1 shall not apply if one of the following applies:

(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

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(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);

Article 21 GDPR. Right to object

1. The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

2. Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.

[…]

(d) the personal data have been unlawfully processed;

(e) the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject;

(f) the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

Article 8 GDPR. Conditions applicable to child's consent in relation to information society services

1. Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child.

Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.

[…]

2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

ISO 27701

ISO/IEC 27701, adopted in 2019, added additional ISO/IEC 27002 guidance for PII processors.

Here is the relevant paragraph to article 17(2) GDPR:

8.3.1 Obligations to PII principals

Control

The organization should provide the customer with the means to comply with its obligations related to PII principals.

Implementation guidance

A PII controller’s obligations can be defined by legislation, by regulation and/or by contract. These obligations can include matters where the customer uses the services of the organization for implementation of these obligations. For example, this can include the correction or deletion of PII in a timely fashion.
Where a customer depends on the organization for information or technical measures to facilitate meeting the obligations to PII principals, the relevant information or technical measures should be specified in a contract.

3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

ISO 27701

ISO/IEC 27701, adopted in 2019, added additional ISO/IEC 27002 guidance for PII controllers.

Here is the relevant paragraph to article 17(3) GDPR:

7.2.2 Identify lawful basis

Control

The organization should determine, document and comply with the relevant lawful basis for the processing of PII for the identified purposes.

Implementation guidance

Some jurisdictions require the organization to be able to demonstrate that the lawfulness of processing was duly established before the processing.

The legal basis for the processing of PII can include:

— consent from PII principals;

— performance of a contract;

— compliance with a legal obligation;

— protection of the vital interests of PII principals;

— performance of a task carried out in the public interest;

— legitimate interests of the PII controller.

The organization should document this basis for each PII processing activity (see 7.2.8).

The legitimate interests of the organization can include, for instance, information security objectives, which should be balanced against the obligations to PII principals with regards to privacy protection.

Whenever special categories of PII are defined, either by the nature of the PII (e.g. health information) or by the PII principals concerned (e.g. PII relating to children) the organization should include those categories of PII in its classification schemes.

The classification of PII that falls into these categories can vary from one jurisdiction to another and can vary between different regulatory regimes that apply to different kinds of business, so the organization needs to be aware of the classification(s) that apply to the PII processing being performed.

The use of special categories of PII can also be subject to more stringent controls.
Changing or extending the purposes for the processing of PII can require updating and/or revision of the legal basis. It can also require additional consent to be obtained from the PII principal.

(a) for exercising the right of freedom of expression and information;

(b) for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(c) for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);

Article 9 GDPR. Processing of special categories of personal data

2. Paragraph 1 shall not apply if one of the following applies:

[…]

(h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

(i) processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;

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3. Personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies.

(d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or

Article 89 GDPR. Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes

1. Processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner.

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(e) for the establishment, exercise or defence of legal claims.

General Data Protection Regulation (EU GDPR)

The latest consolidated version of the Regulation with corrections by Corrigendum, OJ L 127, 23.5.2018, p. 2 ((EU) 2016/679). Source: EUR-lex.

Expert commentary ISO 27701 Recitals Guidelines & Case Law Leave a comment

Expert commentary

The so-called “right to be forgotten” was hailed as a breakthrough with the adoption of the General Data Protection Regulation, even though it existed in a limited form before. Article 17 provides for a broader “right to erasure”, to take into account the exact wording of the provision. European Union residents have a right to ask for the deletion of their personal data, and the organization that holds the data has a corresponding obligation to erase them “without undue delay” under a certain number of circumstances.

[…]

Author

Louis-Philippe Gratton PhD, LLM

Privacy Expert

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Data Subject Request Letter Sample

Concern: Request to erase my personal data

Dear Madam, Dear Sir,

You have data concerning me that I am asking you to delete…

[…]

ISO 27701

ISO/IEC 27701, adopted in 2019, added additional ISO/IEC 27002 guidance for PII controllers.

Here is the relevant paragraph to article 17 GDPR:

7.3.6 Access, correction and/or erasure

Control

The organization should implement policies, procedures and/or mechanisms to meet their obligations to PII principals to access, correct and/or erase their PII.

Implementation guidance

The organization should implement policies, procedures and/or mechanisms for enabling PII principals to obtain access to, correct and erase of their PII, if requested and without undue delay.

The organization should define a response time and requests should be handled according to it.

Any corrections or erasures should be disseminated through the system and/or to authorized users, and should be passed to third parties (see 7.3.7) to whom the PII has been transferred.

NOTE Records generated by the control specified in 7.5.3 can help in this regard.
The organization should implement policies, procedures and/or mechanisms for use when there can be a dispute about the accuracy or correction of the data by the PII principal. These policies, procedures and/or mechanisms should include informing the PII principal of what changes were made, and of reasons why corrections cannot be made (where this is the case).

Some jurisdictions impose restrictions on when and how a PII principal can request correction or erasure of their PII. The organization should determine these restrictions as applicable and keep itself up-to-date about them.

Recitals

(65) A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union or Member State law to which the controller is subject. In particular, a data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.

(66) To strengthen the right to be forgotten in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public should be obliged to inform the controllers which are processing such personal data to erase any links to, or copies or replications of those personal data. In doing so, that controller should take reasonable steps, taking into account available technology and the means available to the controller, including technical measures, to inform the controllers which are processing the personal data of the data subject's request.

Guidelines & Case Law

Documents

Article 29 Working Party, Guidelines on the Implementation of the Court of Justice of the European Union Judgment on Google Spain Inc. v. Agencia Española de protección de datos (AEPD) and Mario Costeja González C-131/12 (2014).

EDPB, Guidelines 5/2019 on the Criteria of the Right to be Forgotten in the Search Engines Cases under the GDPR (part 1) (2019).

Case law

CJEU, Google Spain SL/Agencia española de protección de datos, C-131/12 (2014).

CJEU, Camera di Commercio, Industria, Artigianato e Agricoltura di Lecce/Manni, C-398/15 (2019).

CJEU, GC e.a./Commission nationale de l’informatique et des libertés, C-136/17 (2019).

CJEU, Google LLC/Commission nationale de l’informatique et des libertés, C-507/17 (2019).