Kelsey Farish

The GDPR has been in force for less than two weeks, but Europeans have already started to contact companies left, right and centre to exercise their newly enshrined statutory “right to be forgotten.”

However, this right is not absolute, and only applies in certain circumstances. Let’s look at the balancing act between a data subject’s right to have their data erased on the one hand, and an organisation’s need to maintain data for legitimate purposes, on the other.

Organisations (data controllers and processors) are obliged to only collect and use personal data in a lawful manner, as set out in Article 6. There are several types of “lawful processing,” including in instances where an individual grants his or her explicit and informed consent. But lawful processing also covers the use of data for a controller’s legitimate interests, the performance of a contract, or legal obligations, such as fraud prevention. For more on lawful processing, check out my earlier post – Lights, camera, data protection?

With this in mind, it’s important to note that only in certain scenarios does an individual have the right to be forgotten. Under Article 17(1), their data must be either:

1. no longer necessary for the original purpose
2. processed based on consent, which is now withdrawn
3. processed based on the organisation’s legitimate interests, which the individual objects to;
4. processed for direct marketing purposes, which the individual objects to;
5. processed unlawfully (in contravention of Article 6);
   or
6. erased to comply with a legal obligation.

But before an organisation hits “delete” it must see if any purposes for retention apply. In pre-GDPR days gone by, data subjects had to prove they had the right for their data to be erased. The burden now lies with the controller to prove that they have a legal basis for retaining the data. If so, the organisation has a lawful reason to refuse the erasure request. In fact, deleting data when an exemption does apply could be a breach of the law!

The purposes for retention under Article 17(3) are:

1. the right of freedom of expression and information;
2. complying with a legal obligation, or for performing a task in the public interest;
3. for reasons of public health;
4. for archiving in the public interest, including scientific or statistical research; or
5. for the establishment, exercise or defence of legal claims.

Additionally, “manifestly unfounded” or “excessive” requests may be refused outright.

From what I’ve seen in practice over the last few days, most erasure requests are made because an individual no longer wants to receive marketing emails. Fair enough: in shifting responsibility onto corporate controllers, the right to be forgotten strengthens individual control. It also signifies public disapproval of entities which process – and, in some instances abuse – enormous quantities of personal information without the explicit consent or knowledge of the individuals concerned.

For those of us interested in the societal and human rights implications (I’m telling you – data protection isn’t just for the techies amongst us!) it’s worthwhile to consider how journalism fits into the picture.

As Oxford’s International Data Privacy Law summarises rather eloquently: The nebulous boundaries and susceptibility to misuse of the right to be forgotten make it a blunt instrument for data protection with the potential to inhibit free speech and information flow on the Internet.

As early as 2012, Reporters Without Borders (formally, Reporters Sans Frontières) criticized the right to be forgotten – then in early draft stages – as a generalised right that individuals can invoke when digital content no longer suits their needs. This runs the risk of trumping the public interest in the information’s availability. RSF also contends that the demand for complete erasure of online content, or the “right to oblivion”, could place impossible obligations on content editors and hosting companies.

EU Commissioner Viviane Reding responded to the criticism from RSF by explaining that the [GDPR] provides for very broad exemptions to ensure that freedom of expression can be fully taken into account.

Note – this post covers the statutory Right to Erasure under Article 17 of the GDPR. Although related, it is distinguished from the recent high-profile cases against Google, in which the English Supreme Court held that a defendant convicted of a crime was entitled to the right to be forgotten, and therefore delisted from Google search results. A more serious offence, with fewer mitigating circumstances, did not attract the same right.

photo © Cassidy Kelley