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GDPR – ‘The right to be forgotten’

The GDPR (which will apply in all EU member states from 25 May 2018) enhances existing data subject (individuals) rights and also includes a new data subject right of erasure of personal information. This is also known as the right to be forgotten.

The broad principle underpinning this right is to enable an individual to request the deletion or removal of personal data where there is no compelling reason for its continued processing. If such a request is made by an individual then the business must comply without undue delay, at no cost to the requesting individual, and by erasing all the individual’s personal data wherever it exists (including any archives and backups).

Individuals have a right to have personal data erased and to prevent processing in the following circumstances:

  • Where the personal data is no longer necessary in relation to the purpose for which it was originally collected/processed by the data controller.
  • When the individual withdraws consent to the data controller’s processing activities and no other legal justification for processing applies.
  • When the individual objects to the processing and there is no overriding legitimate interest for continuing the processing
  • The personal data was unlawfully processed (i.e. otherwise in breach of the GDPR)
  • The data controller objects to processing for direct marketing purposes.
  • The data controller collected the personal data in the context of offering online services to children
  • EU or member state law requires erasure to comply with a legal obligation that applies to the data controller

The right to be forgotten is not an absolute right, meaning that a data controller/search engine operator can refuse to comply with the request where the personal data is necessary for the following reasons:-

  • to exercise the right of freedom of expression and information
  • to comply with a legal obligation for the performance of a public interest task or exercise of official authority
  • for public health purposes in the public interest
  • archiving purposes in the public interest, scientific research historical research or statistical purposes; or
  • the exercise or defence of legal claims.

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