There’s still a vigorous debate going on about the ‘right to erasure’, also referred to by some as ‘the right to be forgotten.’ Its detractors strongly argue that it is tantamount to censoring lawful and factual information, and is dubious on principle. They also believe it to be deeply flawed as a method of protecting privacy.
I believe those to be simple-minded positions. The ‘right to erasure’ allows for data subjects to have their data scrubbed when it is no longer necessary for the purpose an organization originally collected it. It is also key when there is no overriding legitimate interest for an organization to continue with the processing. It also protects an individual when their data is being processed unlawfully or when an organization has to adhere to a court ruling.
To be more specific, Article 17 of the GDPR outlines the conditions under which the right to be forgotten takes precedent. An individual has the right to have their personal data erased when:
- The personal data is no longer required for the original purpose an organization collected or processed it;
- An organization is relying on an individual’s consent as the lawful basis for processing the data and that consent is withdrawn;
- An organization is relying on legitimate interests as its justification for processing an individual’s data, the individual objects to this processing, and there is no overriding legitimate interest for the organization to continue with the processing;
- An organization is processing personal data for direct marketing purposes and the individual objects to this processing;
- An organization processed an individual’s personal data unlawfully;
- An organization must erase personal data in order to comply with a legal ruling or obligation; and
- An organization has processed a child’s personal data to provide them with specific information services.
However, there are several instance which override the right to erasure:
- The data is being used to exercise the right of freedom of expression and information.
- The data is being used to comply with a legal ruling or obligation.
- The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority.
- The data being processed is necessary for public health purposes and serves in the public interest.
- The data being processed is necessary to perform preventative or occupational medicine. This only applies when the data is being processed by a health professional who is subject to a legal obligation of professional secrecy.
- The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair halt progress towards the achievement that was the goal of the processing.
- The data is being used for the establishment of a legal defense or in the exercise of other legal claims.
- Furthermore, an organization can request a “reasonable fee” or deny a request to erase personal data if the organization can justify that the request was unfounded or excessive.
As is evident by a deeper look at the GDPR, a number of factors contribute to successfully having your data erased. Each request has to be assessed individually, the request must not interfere with other fundamental rights, it shouldn’t take precedent over the public interest, or countermand law enforcement requirements, etc. It is NOT a lawful reason to erase history or hide data about yourself that is embarrassing, and it doesn’t generally allow you to obscure your criminal past.
That being said, the issue of outdated and irrelevant information remaining indefinitely online is one that law has not effectively addressed (especially in the Internet Age). And it’s a dilemma that is predominantly more harmful for those who aren’t public figures — the folks who are in greater need of privacy protections from the law.
Niel Harper 