The GDPR

Article 17 of Regulation grants a right to be forgotten and to erasure to anyone concerned by personal data processing.

The major contribution of this provision is to establish and to set the conditions for exercising the right to be forgotten, including the obligation for the controller who made public the personal data to inform the third parties of the request of the data subject to erase any links to such data or copies or reproductions that have been made.

Thus, pursuant to Article 17 of the Regulation, the erasure should be obtained  without delay when any of the following grounds applies:  

- where the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

- where the data subject withdraws consent on which the processing is based and where there is no other legal ground for the processing;

- where the data subject objects to the processing pursuant to Article 21 and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21 (2);

- where the personal data have been unlawfully processed;

- where 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;

- where the personal data have been collected in relation to the offer of information society services relating to children referred to in Article 8 (1).

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.

The right to be forgotten and to erasure will however not be exercised where the processing is necessary:

- for exercising the right of freedom of expression and information;

- 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;

- 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);

- 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

- for the establishment, exercise or defence of legal claims.

The Directive

Presented with great fanfare as the major innovation of the Regulation, the right to erasure, however, was already contained, at least in embryo in the Directive, in its Article 12, paragraph b).

We refer here to the important judgment delivered by the Grand Chamber of the Court of Justice of the European Union of 13 May 2014 ((CJEU,  Google Spain SL c. Costeja, 13  May 2014, C-121/12). After considering that Google is subject to the provisions of Directive 95/46/EC (or the transposition law) and considered to be a data controller, the Court found that the right to rectification and to object enshrined in those provisions permit a person to remove links to data.

The requests under Articles 12 (b) (rectification) and 14, first paragraph, (a) (object) of the Directive could be made directly by the data subject to the controller who must duly consider the grounds thereof and, if necessary, terminate the processing of the data in question. When the controller fails to respond to these requests, the data subject can notify supervisory authority or judicial authority to carry out the necessary checks and order the controller to perform specific actions accordingly.

Potential issues

Both under the Directive and under the aegis of the Regulation, neither the general right to object, nor the right to be forgotten are absolute. 

It is certain that the specific circumstanceswill be decisive and will make the legitimate requests to erase more predictable. The problem will result rather from implementing exceptionsand weighing up competing interests, the responsibility for which will rest on the controller.

The ubiquitous nature of the Internet and the possibility of unlimited replications of the information on the Web require further the data subject to endlessly repeat their request for erasure to the search engines, once new websites containing such information appear. This time-consuming exercise will discourage data subjects. This situation is not likely to guarantee to the citizen a real mastery of their personal data.

Will the obligation on the controller to inform the other controllers processing the data that are subject to the erasure request simplify the task of the data subjects? We will see in practice and in view of the limits permitted by the text itself (at what point and does this obligation become unreasonable?).

Group 29

Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 (6 February 2018)

(Endorsed by the EDPB)

The General Data Protection Regulation (the GDPR), specifically addresses profiling and automated individual decision-making, including profiling.

Profiling and automated decision-making are used in an increasing number of sectors, both private and public. Banking and finance, healthcare, taxation, insurance, marketing and advertising are just a few examples of the fields where profiling is being carried out more regularly to aid decision-making.

Advances in technology and the capabilities of big data analytics, artificial intelligence and machine learning have made it easier to create profiles and make automated decisions with the potential to significantly impact individuals’ rights and freedoms.

The widespread availability of personal data on the internet and from Internet of Things (IoT) devices, and the ability to find correlations and create links, can allow aspects of an individual’s personality or behaviour, interests and habits to be determined, analysed and predicted.

Profiling and automated decision-making can be useful for individuals and organisations, delivering benefits such as:

• increased efficiencies; and
• resource savings.

They have many commercial applications, for example, they can be used to better segment markets and tailor services and products to align with individual needs. Medicine, education, healthcare and transportation can also all benefit from these processes.

However, profiling and automated decision-making can pose significant risks for individuals’ rights and freedoms which require appropriate safeguards.

These processes can be opaque. Individuals might not know that they are being profiled or understand what is involved.

Profiling can perpetuate existing stereotypes and social segregation. It can also lock a person into a specific category and restrict them to their suggested preferences. This can undermine their freedom to choose, for example, certain products or services such as books, music or newsfeeds. In some cases, profiling can lead to inaccurate predictions. In other cases it can lead to denial of services and goods and unjustified discrimination.

The GDPR introduces new provisions to address the risks arising from profiling and automated decision-making, notably, but not limited to, privacy. The purpose of these guidelines is to clarify those provisions.

This document covers:

• Definitions of profiling and automated decision-making and the GDPR approach to these in general – Chapter II
• General provisions on profiling and automated decision-making – Chapter III
• Specific provisions on solely automated decision-making defined in Article 22 - Chapter IV
• Children and profiling – Chapter V
• Data protection impact assessments and data protection officers– Chapter VI

The Annexes provide best practice recommendations, building on the experience gained in EU Member States.

The Article 29 Data Protection Working Party (WP29) will monitor the implementation of these guidelines and may complement them with further details as appropriate.

Link

CJEU caselaw

C-553/07 (7 May 2009)

Article 12(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data requires Member States to ensure a right of access to information on the recipients or categories of recipient of personal data and on the content of the data disclosed not only in respect of the present but also in respect of the past. It is for Member States to fix a time-limit for storage of that information and to provide for access to that information which constitutes a fair balance between, on the one hand, the interest of the data subject in protecting his privacy, in particular by way of his rights to object and to bring legal proceedings and, on the other, the burden which the obligation to store that information represents for the controller.

Rules limiting the storage of information on the recipients or categories of recipient of personal data and on the content of the data disclosed to a period of one year and correspondingly limiting access to that information, while basic data is stored for a much longer period, do not constitute a fair balance of the interest and obligation at issue, unless it can be shown that longer storage of that information would constitute an excessive burden on the controller. It is, however, for national courts to make the determinations necessary.

Opinion of Advocate general

Judgment of the Court

C-486/12 (12 December 2013)

1.      Article 12(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not precluding the levying of fees in respect of the communication of personal data by a public authority.

2.      Article 12(a) of Directive 95/46 must be interpreted as meaning that, in order to ensure that fees levied when the right to access personal data is exercised are not excessive for the purposes of that provision, the level of those fees must not exceed the cost of communicating such data. It is for the national court to carry out any verifications necessary, having regard to the circumstances of the case.

Judgment of the Court

C-131/12 (13 May 2014)

1.      Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’ in respect of that processing, within the meaning of Article 2(d).

2.      Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

3.      Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

4.      Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name. However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

Opinion of Advocate general

Judgment of the Court

C-141/12 ; C-372/12 (17 July 2014)

1.      Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the data relating to an applicant for a residence permit contained in an administrative document, such as the ‘minute’ at issue in the main proceedings, setting out the grounds that the case officer puts forward in support of the draft decision which he is responsible for drawing up in the context of the procedure prior to the adoption of a decision concerning the application for such a permit and, where relevant, the data in the legal analysis contained in that document, are ‘personal data’ within the meaning of that provision, whereas, by contrast, that analysis cannot in itself be so classified.

2.      Article 12(a) of Directive 95/46 and Article 8(2) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that an applicant for a residence permit has a right of access to all personal data concerning him which are processed by the national administrative authorities within the meaning of Article 2(b) of that directive. For that right to be complied with, it is sufficient that the applicant be in possession of a full summary of those data in an intelligible form, that is to say a form which allows that applicant to become aware of those data and to check that they are accurate and processed in compliance with that directive, so that he may, where relevant, exercise the rights conferred on him by that directive.

3.      Article 41(2)(b) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the applicant for a residence permit cannot rely on that provision against the national authorities.

Opinion of Advocate general

Judgment of the Court

C-398/15 (9 March 2017)

Article 6(1)(e), Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, read in conjunction with Article 3 of the First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, as amended by Directive 2003/58/EC of the European Parliament and of the Council of 15 July 2003, must be interpreted as meaning that, as EU law currently stands, it is for the Member States to determine whether the natural persons referred to in Article 2(1)(d) and (j) of that directive may apply to the authority responsible for keeping, respectively, the central register, commercial register or companies register to determine, on the basis of a case-by-case assessment, if it is exceptionally justified, on compelling legitimate grounds relating to their particular situation, to limit, on the expiry of a sufficiently long period after the dissolution of the company concerned, access to personal data relating to them, entered in that register, to third parties who can demonstrate a specific interest in consulting that data.

Opinion of Advocate general

Judgment of the Court