GDPRRight to be Forgotten

The right to be forgotten derives from the case Google Spain SL, Google Inc v Agencia Española de Protección de Datos, Mario Costeja González (2014). Now the right to be forgotten is being codified General Data Protection Regulation in addition to the right of erasure.

The correspondingly-named standard primarily regulates erasure obligations. According to this, personal data must be erased immediately as long as the data are no longer needed for their original processing purpose, or the impacted person has withdrawn his consent and there is no other reason for justification, the impacted person has objected and there is no preferential justified reason for the processing, or erasure is required to fulfil a statutory obligation under the EU law or the right of the Member States. In addition, data must of course be erased if the processing itself was against the law.

The responsible person is therefore subject on the one hand to automatic statutory erasure obligations, and must, on the other hand, comply with the impacted person’s desire to be erased. The law does not further describe how the data must be erased in individual cases. The decisive element is that the result is that it is no longer possible to see the data without disproportionate expense. One regards this effort as sufficient if the media has been physically destroyed, or the data is permanently over-written using special software.

In addition, the right to be forgotten is found in Art. 17 para. 2 of the GDPR. If the responsible party has published the personal data, and if one of the above reasons to erasure is present, he must take suitable measures with consideration of the circumstances to inform all those who are further responsible for the data processing that all links to this personal data or copies or replicates of the personal data must be erased.

An application of erasure is not subject to any particular form, and the responsible party need not link it to such a form. However, the identity of the impacted person must be proven in a suitable way, as otherwise additional information could be requested from the responsible party, or the erasure could be refused. If there is an application to erase or a statutory obligation to erase, this must be implemented quickly. This means that the responsible party only has a suitable time to check the conditions for erasure. In the case of an application for erasure, the impacted party must be informed within one month about the measures taken or the reasons for refusal. Once again, the right to be forgotten is reflected in the obligation to notify. In addition to erasure, according to Art. 19 of the GDPR the responsible entity must inform all receivers of the data. For this, he must use all means available and exhaust all appropriate measures.