European Union: Three Things Not To Be Forgotten About The GDPR's "Right To Be Forgotten"

Last Updated: 17 September 2018
Article by Catherine Muyl and Marion Cavalier

Our experience in advising clients about GDPR and assisting them in the compliance process is that there are often misconceptions about the so-called "right to be forgotten". The purpose of this post is to address some of these misconceptions.

  • The "right to be forgotten" was not created by the GDPR

The GDPR replaced the EU's 1995 Directive which provided in Article 12(b) that "Member States must guarantee every data subject the right to obtain from the controller: (...), as appropriate, the rectification, erasure or blocking of data, the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data." In the famous Google Spain decision rendered on 13 May 2014, the European Court of Justice referred to that Article and to the two articles of the European Charter of Fundamental Rights which deal with data protection, and held that the operator of a search engine is obliged, in certain circumstances, to remove links to web pages containing information relating to a person. The right to be forgotten, also called right to erasure, had therefore existed in European law (via the 1995 Directive) for more than 20 years when the GDPR came into force in May 2018. What the GDPR does, essentially, is to define in its Article 17 when and how the right to erasure may be exercised.

  • The right to be forgotten is not absolute

Article 17 of the GDPR on the right to be forgotten actually provides a list of circumstances where data subjects have grounds to request the erasure of their personal data. The common misconception that the right to be forgotten is absolute probably comes from another misconception on consent.

The fundamental rules set out in the GDPR are essentially the same as those in the 1995 Directive. One of the basic principles is that any data processing must be based on one of the legal grounds listed in the GDPR, which include the consent of the data subject. While consent often appears to be an attractive avenue to data use, in particular in the internet world where it is fairly easy to get people to click, it has a major drawback: that consent can be withdrawn at any time (Article 7.3 of the GDPR). This is probably why people sometimes believe that a data subject can always request the deletion of his/her data. But that is not the case: withdrawal of consent is only one of the particular circumstances in which data subjects can have their personal data erased. The other circumstances are when:

  • the personal data is no longer necessary for the purpose for it was originally collected or processed;
  • the processor relies on legitimate interests, the individual objects and there is no overriding legitimate interest to continue this processing;
  • the personal data is processed for direct marketing purposes and the individual objects;
  • the personal data has been processed unlawfully;
  • erasure is required to comply with a legal obligation; or
  • the personal data is processed to offer internet services to a child.

One can see from this list that, in most cases, this right to be forgotten is not so much a brand new right as a new enforcement tool: it enables the data subject to correct a form of non-compliance. For example, it is a rule that data should not be kept or used longer than what is strictly necessary. If the data has, in fact, been kept longer, the data subject can request and obtain its deletion.

  • The right to be forgotten is not unrestricted

Contrary to what a lot of people think, there are certain limitations on the right to erasure. Under the GDPR, the right to erasure does not apply if processing is necessary for one of the following reasons:

  • to exercise the right of freedom of expression and information;
  • to comply with a legal obligation;
  • for the performance of a task carried out in the public interest or in the exercise of official authority;
  • for archiving purposes in the public interest, scientific research historical research or statistical purposes where erasure is likely to render impossible or seriously impair the achievement of that processing; or
  • for the establishment, exercise or defence of legal claims.

Here again, this is not totally new and two of the above limitations were discussed in the Google Spain case. The plaintiff complained about the publication of a forced sale of his house that had taken place more than 10 years before. He asked the newspaper to remove the information and Google to remove the link to that publication. The newspaper argued before the Spanish Data Protection Authority that the information was originally published in compliance with Spanish law, upon a request from the Spanish Ministry of Labour and Social Affairs and the Authority agreed that in that case, the information did not have to be deleted. Google argued that the right of erasure was contrary to the right of information but the Spanish Authority disagreed and the European Court held that that the interest of the general public in having access to information could vary depending on factors such as the role played by the data subject in public life. Since Mr. Gonzalez was, prior to that judgement, totally unknown from the public, that public did not have a right to get information about the forced sale of his house. One should also keep in mind that specific restrictions apply in the health sector1.

The right to be forgotten is a complex right and in the context of search engines, its exercise can give rise to complex issues. After the Google Spain judgement was rendered, the French Data Protection Authority (CNIL) enquired about how Google was implementing the right and found out that when requests were received from individuals residing in France, Google deleted the links from its "French" search engine, i.e., the one that was accessed on google.fr. The CNIL ordered Google to delete the links from all its search engines worldwide, Google refused and the CNIL imposed a fine of 100,000 euros. Google filed an appeal before the Conseil d'Etat who referred questions to the European Court of Justice about the territorial scope of the right. Although the answers to those questions will be in relation to the 1995 Directive and not in relation to the GDPR which has a much broader territorial scope, it will be interesting to see what the Court will decide in a few months.

Footnotes

1 The right to erasure does not apply:

  • if the processing is necessary for public health purposes in the public interest (eg 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); or
  • if the processing is necessary for the purposes of preventative or occupational medicine (eg where the processing is necessary for the working capacity of an employee; for medical diagnosis; for the provision of health or social care; or for the management of health or social care systems or services). This only applies where the data is being processed by or under the responsibility of a professional subject to a legal obligation of professional secrecy (e.g., a health professional).

To view Foley Hoag's Security, Privacy and The Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Nov 2018, Other, Boston, United States

Please join us on Wednesday, November 7 at the Westin Waltham Hotel for our quarterly New England M&A Forum, which brings the latest in market trends and recent legal developments to the New England M&A professionals' community.

13 Nov 2018, Webinar, Boston, United States

Social media platforms present countless opportunities for companies looking to connect to consumers and clients in real time.

 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions