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 65: The right of rectification and the right to be forgotten - Article 17(1) and (3)

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: The right to be forgotten and the obligation to inform other controllers - Article 17(2)

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

The right to erasure, also commonly known as the right to be forgotten, constitutes a very important safeguard for the enforcement of the data protection principles and especially the principle of "data minimisation" as foreseen under Article 5(1)(c). This right has been hugely disputed and it initially derived from the interpretation of Article 12(b) and Article 14(1)(a) of Directive 95/46/EC that the Court of Justice followed in its landmark judgement Google Spain C-131/12. GDPR is the first piece of legislation that makes explicit mention of the right to erasure.

(1) Legal grounds

The right to erasure does not constitute an absolute right granted to the data subjects. It can be exercised only if -at least- one of the following legal grounds applies and oftentimes it requires a balancing exercise among the different interests at stake. Article 19 is read together with Article 17(2), which foresees the communication of any erasure of personal data to each recipient to whom the personal data has been disclosed (unless this proves impossible or entails disproportionate effort) as well as to the data subject that requested it.

(a) Data no longer necessary for the initial purposes

The data subject may invoke the right to erasure when the personal data is no longer necessary for the purpose(s) they initially collected or otherwise processed. This legal ground reflects the general GDPR principle of "purpose limitation" as provided for in Article 5(1)(b). In this case, if a data controller keeps processing the personal data, then this processing would be unlawful according to Article 5(1)(b), except if the data controller had previously informed the data subject about the change of purpose according to Article 13 GDPR and Article 14 GDPR.

(b) Withdrawal of consent and no other legal basis

This ground can apply in cases where the legal basis for processing is consent as provided for in Article 5(1)(a) or in Article 9(2)(a) when sensitive categories of personal data are processed. Further processing of personal data after withdrawal of consent according to Article 7(3) renders that processing operation unlawful and the data controller must erase the personal data upon request. However, if there is another legal basis for lawful processing, such as the compliance of a legal obligation to which the controller is subject, then the latter may continue the processing operations and will not be obliged to erase this data.

(c) Objection to processing and no overriding legitimate grounds

If the data subject objects in accordance with Article 21(1) and there are no compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or in accordance with Article 21(2) when processing is implemented for direct marketing purposes, then further processing will not be lawful (if there is no other legal basis for lawful processing) and such objection can serve as a proper ground for exercising the right to erasure. The data controller bears the burden to demonstrate whether the mentioned overriding legitimate grounds exist.

(d) Unlawful processing

The processing can be unlawful in many instances. The most prominent case would be the lack of any legal basis as prescribed in Article 6 or Article 9 or the violation of the obligations of the data controllers under the GDPR as provided for mainly in Chapters 4 and 2.

(e) Compliance with a legal obligation

Such legal obligations are left to the discretion of Member States. Hence, additional cases which would justify the erasure of data can be established at national level.

(f) Information society services to children

This provision is meant to ensure a more thorough protective scheme for the sensitive category of data subjects, children. According to Article 8(1), GDPR defines children below the age of 16 but Member States have the discretion to adopt law establishing a lower age limit for those purposes (the age of 13 is the minimum permitted age according to the GDPR). Recital 65 is quite insightful about the justification of this provision, which is that where the data subject has given his or her consent as a child is probably not fully aware of the risks involved in the processing operations and may want to remove such personal data, especially on the internet. The recital offers the possibility of exercising this right even when the data subject is no longer a child. Contrary to the above-mentioned provisions, here a potential existence of additional legal bases for processing is not crucial.

(2) Obligation to inform other controllers

This paragraph establishes an additional obligation to the data controllers when they have made personal data public. Recital 66 makes clear that this addition is meant to "strengthen the right to be forgotten in the online environment" but it is not limited to this kind of processing operations. This paragraph is a clear reflection of the ruling in Google Spain C-131/12. This obligation has been criticised as conferring an excessive burden on controllers, which is moderated only by the non-defined notion of "reasonable steps". However, there is also the view that the "reasonable steps" constitute an adequate leverage for the data controllers to ensure that they are not obliged to make disproportionate efforts. The compliance of the data controllers with this obligation would be facilitated by documenting all the categories of personal data they have communicated to third parties as well as the third parties.

(3) Exceptions

The exceptions here are not absolute, but a necessity test is required. The refusal of the erasure is only allowed "to the extent that processing is necessary" for the reasons below. Interestingly, this yields that a data subject may exercise the right to erasure when the processing is no longer necessary or it is carried out at a level beyond of what is necessary. In any case, the data controllers bear the burden to demonstrate and prove the application of any exception they may rely on.

(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. Results may vary from case to case, but it can be said that it is a common ground when the case is about a public figure or about the professional life of a data subject the argument for the freedom of expression and information usually prevails. Article 85(1) 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."

(b) Compliance with a legal obligation/ Public interest/ Official authority

A common instance of the compliance with a legal obligation is compliance with national tax laws which may require the retention and processing of personal data.