Article 17 GDPR

← Article 17 - Right to erasure (‘right to be forgotten’) →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 17 - 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:

(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;

(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);

(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).

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.

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

(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);

(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

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

Relevant Recitals

Recital 39: Principles of Data Processing

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

Recital 65: Right to Erasure and Rectification

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.

Recital 66: Informing Controllers of Erasure

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.

Commentary

Article 17 confers upon the data subject the right to have their personal data erased. Paragraph 1 establishes a standard "right to deletion" of personal data and imposes an obligation on the controller to remove the data when certain conditions are met. To enhance the effectiveness of the right to deletion, especially on the internet (Recital 66), paragraph 2 introduces the so-called "right to be forgotten" which imposes a further obligation on the controller to inform other controllers of the request to delete all links, copies or duplicates of the data, through appropriate technical and cost-effective measures. Paragraph 3 sets out the exceptions to the rules outlined in paragraphs 1 and 2.

(1) Right to erasure

The right to erasure does not constitute an absolute right granted to data subjects. It can be exercised only if one of the following legal grounds applies, which in turn gives rise to a correlated obligation on the controller. Often times, it also requires a balancing exercise among the different interests at stake.

The data subject has the right to obtain...

Article 17 of the GDPR does not contain specific provisions regarding the methods for exercising the right to erasure. These provisions can be found in Article 12, which includes the general obligation to provide information which is accurate and clear (Article 12(1) GDPR), facilitate the data subject (Article 12(2) GDPR), respond and communicate the measures taken (Article 12(3) and (4) GDPR), the principle of freedom from costs (Article 12(5) GDPR) and the identity verification procedure in case of uncertainty (Articles 11 and 12(6) GDPR).

Erasure of personal data

The act of erasing data constitutes a type of processing as defined by Article 4(2) GDPR. The regulation does not provide a definition of "erasure". When it comes to deleting data, the controller has some discretion in choosing means and procedures. In any case, erasure must be effective. Some possible methods for erasing data include physically eliminating the data by overwriting or erasing it, using mechanical or chemical methods such as shredding the paper, burning or otherwise destroying the data carrier, scratching the surface of CDs, and destroying codes or decryption devices without removing the data itself. In general, deleting a link or reference in a file system (logical deletion) typically does not result in the actual erasure of the data, but only makes it more challenging to locate. The requirements for deletion under data protection laws are evolving due to technological advancements. It is crucial to acknowledge the possibility of recovering deleted data through specialized software. The use of such software is generally expected and feasible.

Deletion must be comprehensive but not in absolute terms. it therefore applies to all data and data carriers, including data stored on backup media, as well as those belonging to contractors (e.g., stored in a "cloud") or employees' private data processing devices. However, removing identical data that serves a legitimate and still valid purpose is unnecessary. In certain situations, preservation of backup copies, for instance, may also be justified due to the controller's legitimate interest. The right of erasure in the context of profiling (Article 4(4) GDPR) affects both the input data (i.e., the personal data on which a profile is based) and the output data (i.e., the profile itself). The deletion obligation does not include any copies of the data made by third parties to whom the data has been disclosed. In this respect, there is an obligation to notify the erasure under Article 19 GDPR and the recipient may be subject to independent deletion obligations.

Relation with the "right to be forgotten"

The GDPR does not clearly state the relationship between the "right to erasure" and the "right to be forgotten." They are not interchangeable terms, but rather two distinct expressions of the rights of the data subject under Article 17 of the GDPR. Recital 66, paragraph 2 suggests that the "right to be forgotten" is related to the obligation under Article 17(2) to inform third parties about the erasure of personal data that has been made public. This obligation arises when the right to erasure is exercised. For further information, see commentary under Article 17(2) GDPR below.

And the controller shall have the obligation to erase...

The erasure of personal data is not solely based on a request from the data subject. In accordance with Article 5 of the GDPR, and in particular the principles of lawfulness, data minimization, and storage limitation, the controller must carry out the deletion independently if one of the elements included in the list (a-f) is met. For example, in the event that the data subject revokes their consent, it would be appropriate to proceed with the deletion of all personal data associated with the unauthorized processing. The same applies to processing that has achieved its purpose and therefore no longer has a viable purpose. In this case, it would also be necessary to delete all associated data. However, a blind execution of this obligation leads to unacceptable results. Taking inspiration from the examples mentioned earlier, in the case of consent withdrawal, it is necessary to assess the scope of the data subject's action. If the revocation does not concern the entire processing but only a specific part, an indiscriminate erasure would not only be unadvisable but also inadmissible. The same applies when the purpose of the processing is pursued. In this circumstance, the data subject may request a restriction of processing (Article 18 GDPR) instead of deletion (Article 17(1)(a) GDPR), and a controller-initiated deletion may be deemed abusive. Based on the aforementioned considerations, meticulous scholars elaborate an obligation of the controller, based on the facilitation obligation under Article 12(2) GDPR, to evaluate the situation on a case-by-case basis and, where necessary, contact the data subject for any clarifications regarding their intentions.

Where one of the following grounds applies

(a) Data no longer necessary for the initial purposes

The personal data must be erased if they are no longer necessary for the purpose(s) they were initially collected for or otherwise processed. This scenario reflects the general GDPR principles of "purpose limitation" and “storage limitation” as provided for in Articles 5(1)(b) and (e) GDPR.

Determining when a purpose no longer exists is not a straightforward matter, as it varies case by case. Fixed deadlines cannot be set to address this issue. The European Court of Justice has established that an examinee can request that their examination answers and the examiner's comments be deleted once they are no longer necessary for identification, such as when the examination process is completed and the answers and comments have lost their probative value. Similarly, applicants' data can be deleted once the selection process has ended and there is no longer any legal protection against the appointment.

Example: Once the electronic health card has been issued, a health insurance company no longer requires the photograph to be stored, as an example. Similarly, if there are no further labour law disputes with an employee, an employer no longer needs to store a warning letter after the termination of the employment relationship, as noted in another example. Additionally, a provider of basic security for job seekers is not required to retain a copy of the identity card after the end of the benefit period.

The above is true unless the processing of personal data is “necessary for realising another purpose of processing that partially overlaps with or is compatible with the eliminated purpose” under Article 6(4) GDPR. Art 6(4) GDPR establishes that, in order for the controller to determine whether processing for another purpose is possible (i.e. compatible with the purpose for which the personal data was initially collected), certain elements have to be taken into consideration (inter alia, the link between the former and further purpose, the context or relationship between the data subject and the controller, the nature of the personal data, the possible consequences of further processing, and the existence of appropriate safeguards). In such case, that is to say, when "further processing" is possible, erasure of personal data can be avoided.

Example: XXX

(b) Withdrawal of consent and no other legal basis is available

When the legal basis for processing is consent as provided for in Article 6(1)(a) GDPR or, as the case may be, Article 9(2)(a) GDPR, and consent is withdrawn according to Article 7(3) GDPR, the processing becomes unlawful and, in general, data must be erased under Article 17(1)(b) GDPR, unless there is another other applicable legal ground that makes the processing lawful.

Example: XXX

(c) Objection to processing and no overriding legitimate grounds exist

According to this provision, data must be erased in two different cases. First, (i) an objection to processing in accordance with Article 21(1) GDPR has been raised and there there are "no overriding legitimate grounds for the processing". Second, (ii) the data subject have objected to direct marketing under Article 21(2) GDPR.

(i) Erasure following objection under Article 21(1)

With regard to the first hypothesis, the attention of the interpreters has focused on the discrepancy between the terminology used in Article 17(1)(c) ("no overriding legitimate grounds") and that of Article 21(1) ("compelling legitimate grounds"). According to a first view, the two wordings refer to two distinct and non-overlapping concepts. In this perspective, the absence of "compelling legitimate grounds" (Article 21(1) GDPR) results in the obligation to interrupt a certain processing activity ("shall no longer process personal data", Article 21(1) GDPR), but not necessarily to erase personal data. An actual erasure obligation would only arise if, following the first check under Article 21(1), it were shown that there are no "compelling legitimate grounds" for deletion (Article 17). According to a second view, the wording discrepancy between Article 17(1)(c) ("overriding legitimate grounds") and Article 21(1) p. 2 ("compelling reasons worthy of protection") is irrelevant. In both cases, based on a comprehensive balancing of interests, the controller must take into account overriding legitimate interests within the meaning of the law (Article 6(1)(f) GDPR). Therefore, for a claim for deletion to be admissible, all and only the conditions listed in Article 21(1) must be met.

(ii) Erasure following objection under Article 21(2)

Data must also be erased when an objection to direct marketing has been submitted under Article 21(2) GDPR. However, if the same data is used for other purposes, that processing will still be possible provided that there is another applicable legal basis A confirmation to this can be found in Article 21(3) GDPR under which, in case of objection to direct marketing, "personal data shall no longer be processed for such purposes". This means that erasure will also be excluded when other lawful purposes are pursued by the controller.

Example: XXX

(d) Unlawful processing

Under Article 17(1)(d) GDPR, data must be erased in case they "have been unlawfully processed". Processing can be unlawful for a number of reasons. Most commonly, processing is unlawful when it lacks any legal basis as prescribed in Article 6 GDPR or Article 9 GDPR. However, unlawfulness under GDPR is not only limited to situations where the legal basis for processing is missing under Article 6 or 9, but also includes cases where the processing activity violates GDPR for "other reasons" (Recital 65). To begin, processing is unlawful if it does not conform to the principles set out in Article 5.

Case-law: In CJEU - C‑131/12 - Google Spain, the Court held that all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, secondly, with one of the criteria for making data processing legitimate listed in Article 7 of the directive [...] Under Article 6 of Directive 95/46 [...] the controller has the task of ensuring that personal data are processed ‘fairly and lawfully’, that they are ‘collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes’, that they are ‘adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed’, that they are ‘accurate and, where necessary, kept up to date’ and, finally, that they are ‘kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed’.

Hence, data processing may also be unlawful where any GDPR provision implementing a principle is breached. For instance, if its technical design and implementation do not conform to the requirements of Article 25 or do not comply with the security standards set out in Article 32. Unlawfulness also arises in situations where processed data is inaccurate (Article 16 GDPR). In other words, “this provision can be seen as a sweeping clause, as it grants a right to erasure where processing is unlawful, whether it is for a lacking legal permission for processing or for non-compliance with the Regulation, such as regarding the organisational obligations of the controller”.

(e) Compliance with a legal obligation

Personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject. This provision contains an opening clause by which legal obligations are left to the discretion of Member States. Hence, additional cases which would justify the erasure of data can be introduced at a national level. The opening clause does not impose any special requirements on the respective Member State regulation. However, it is necessary that the respective Member State regulation does not undermine the requirements of the GDPR and, above all, does not violate any rights under the Charter or fundamental freedoms.

(f) Information society services to children

Personal data must also be erased if they have been collected in relation to the offer of information society services referred to in Article 8(1). This provision is meant to ensure a more thorough protective scheme for children, who enjoy increased protection under the GDPR. Recital 65 GDPR, in particular, establishes a reason for this provision, stating that where the data subject has given their consent as a child, and are not fully aware of the risks involved in the processing operations, they may want to remove such personal data, especially on the internet.

With that being said, the scope of this provision must be clarified. A strict literal interpretation would lead to the conclusion that every personal data of minors collected by an information society service must always and in any case be deleted. Such conclusion would make little sense because, at least in theory, and under certain conditions, Article 8(1) GDPR allows for the processing of such personal. Therefore, an alternative interpretation that is in line with the structure of Article 17 and, more generally, of the GDPR should be provided. In this perspective, the scope of this provision consists of the revocation of a previously given (valid) consent under Article 8(1) of the GDPR. If such consent is revoked, the data must be removed. Compared to the "classic" consent revocation case under Article 17(1)(a) GDPR is that in these cases the deletion of the data occurs even if there are, in theory, other legal bases for further processing. Moreover, following the indications of Recital 65, the request remains valid especially when the data subject is no longer a minor.

In other words, it is a reinforced right to erasure that, on the one hand, excludes hypotheses of further processing due to additional legal bases other than consent and, on the other hand, allows the data subject to remove personal data disseminated on the internet and generally made available by controllers during their childhood, potentially without realizing the importance and consequences of such actions.

(2) Obligation to inform other controllers ("Right to be forgotten")

This paragraph establishes an additional obligation for controllers who have made personal data public, to take reasonable steps to inform other controllers (including employees of the controller), processors, and third parties, which are processing this data, that its erasure has been requested by a data subject.

Article 17(2) GDPR is read together with Article 19 GDPR, which foresees the communication of any erasure of personal data to each recipient to whom the personal data had been disclosed (unless this proves impossible or entails disproportionate effort), as well as informing the data subject about those recipients if requested. Recital 66 GDPR clearly states that this addition is meant to "strengthen the right to be forgotten in the online environment", although it is not limited to this kind of processing. This paragraph is a clear reflection of the ruling in Google Spain. Rucker and Kugler note that to be able to comply with the requirements set out in Article 19 GDPR, “controllers should document and keep track of the organisations they transfer personal data to and the categories of personal data transferred.” In this regard, Voigt and von dem Bussche suggest the implementation of technical and organisational measures to be able to record the recipients of personal data, including records of processing activities, as well as Data Protection Management Systems where feasible.

This obligation in general has been criticised as conferring an excessive burden on controllers, which is moderated only by the non-defined notion of "reasonable steps", although there is also the view that the constitute an adequate leverage for the data controllers to ensure that they are not obliged to make disproportionate efforts. In fact, in Kranenborg’s opinion, “this obligation has actually been softened in comparison with the Commission’s initial proposal, according to which the controller was ‘considered responsible’ for a publication made by a third party if they had ‘authorised’ it, and had to take ‘all’ reasonable steps to inform those third parties of the erasure request.” It is not entirely clear whether the reasonableness of these measures depends on the controller’s subjective situation, or whether objective criteria should be used. According to Voigt and von dem Bussche, “the former should be the case, as otherwise the obligation would be too much of a burden for micro, small and medium-sized enterprises whose interests have received special consideration under the GDPR.”

Furthermore, as Kelleher and Murray highlight, “it seems that this amounts only to an obligation to inform other controllers that such links should be erased, the GDPR does not provide that controllers have to require such erasure and does not provide a specific mechanism by which controllers could require such erasure.” Additionally, it is also important to keep in mind that third parties might be in a different position when processing the data which they have obtained through the controller. In this sense Carey notes, that “it is also entirely possible that a third party controller that has obtained personal data as a result of their having been made public by another controller will process those data on the basis of processing grounds that do not allow for erasure requests, or will be able to rely on exemptions to the right of erasure that are not available to the controller that made the data public.”

Additionally, it is important to mention that according to the EDPB, this obligation of information does not apply to search engine providers when they find information containing personal data published or placed on the internet by third parties, index it automatically, store it temporarily and make it available to internet users according to a particular order of preference. In addition, "it does not require search engine providers, who have received a data subject’s delisting request, to inform the third party which made public that information on the internet. Such obligation seeks to give greater responsibility to original controllers and try to prevent from multiplying data subjects’ initiatives.” Moreover, according to the Board, it is planning to issue specific Guidelines on Article 7(2) GDPR in the future.

(3) Exceptions

The exceptions here are not absolute, and a necessity test will be required. The refusal of the erasure is only allowed "to the extent that processing is necessary" for the reasons below. This means that a data subject may exercise the right to erasure when the processing is no longer necessary, or when it is carried out at a level beyond what is necessary. In any case, the data controllers bear the burden of demonstrating and proving that any exception that they may rely on is applicable.

(a) Freedom of expression and information

This exception reflects one of the most common balancing tests that not only courts but also many data protection authorities have been called upon to implement. When attempting to strike a balance, the following two factors need to be taken into consideration: first, the nature of information in question and its sensitivity for the data subject’s private life, and second, the public’s interest in accessing the information, which may vary depending on the data subject’s role in public life. Results may vary from case to case, but when the data is about a public figure or about the professional life of a data subject, the argument for refusing erasure in favour of freedom of expression and information usually prevails. Article 85(1) GDPR is relevant here, according to which "Member States shall by law reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression."

It is important to take into consideration that according to Recital 153 GDPR, “in order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly.” According to Voigt and von dem Bussche, “this exception might become highly relevant in practice as this right cannot only be invoked by the press but also by any entity”, as well as any individual. Voigt and von dem Bussche also note that “under this exception, an erasure of opinions should be excluded. However, the distinction between personal data and opinion can be difficult where an opinion is based on personal data. In such a case, it needs to be balanced out whether the underlying personal data is still necessary for forming an opinion. The older the personal data is, the more improbable is their necessity for forming an opinion.”

(b) Compliance with a legal obligation, public interest, official authority

These situations refer to the grounds of processing contained in Article 6(1)(c) and (e). A common instance of such compliance with a legal obligation is compliance with national commercial or tax laws which may require the retention and processing of personal data.

(c) Public health

This section establishes an exception based on public health reasons, making specific references to provisions in Article 9 GDPR related to the processing of special categories of personal data.

Specifically, Article 9(2)(h) GDPR which refers to a broad exception based on processing necessity for the provision of health and social care. According to Georgieva and Kuner, the latter should be interpreted broadly to include assistance granted by social security authorities. Besides health and social care services, it also includes other related purposes, such as the assessment of employee working capacities or the management of health or social care systems. For this exception to apply, the sensitive data must be processed by a professional subject to the obligation of professional secrecy, as established by an explicit complementary provision in Article 9(3) GDPR, also referenced in this section.

The other provision mentioned is Article 9(2)(i) GDPR, which is an exception for processing based on public interest considerations in the area of public health. It gives some examples, such as protection against serious cross-border threats, or ensuring adequate standards for health products and devices.

According to Recital 54 GDPR, the interpretation of “public health” corresponds to Regulation (EC) No 1338/2008,[Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work (available here).] which includes “namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality.”

(d) Archiving, scientific, historical research, statistical purposes

This section (which mirrors Article 9(2)(j) GDPR) contains a processing exception for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) GDPR, which in turn establishes that these processing purposes must be subject to appropriate safeguards for the rights and freedoms of data subjects. Among those safeguards, this article places an emphasis on data minimisation, and mentions pseudonymisation as a possible measure. This exception will apply when the right to erasure will have a considerable effect on these purposes, either rendering them impossible, or seriously impairing them.

(e) Legal claims

This provision (which also partly mirrors Article 9(2)(f) GDPR) establishes an exception which prevents data subjects from demanding an erasure of their personal data that might be relevant for the establishment, exercise or defense of legal claims, which should be interpreted broadly to include both public and private law claims. It should also be noted that these legal claims bust be either already filed and underway, or at the very least imminent or impending, and not just a hypothetical possibility.

EDPB Guidelines: on this Article there are EDPB Guidelines 5/2019 on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1)

Decisions

→ You can find all related decisions in Category:Article 17 GDPR