What is The Right to be forgotten?

Our Hannah Costley explains what is the right to be forgotten, the judgement in the case of Google Inc. v Agencia Española de Protección de Datos (AEPD), known as the ‘Google Spain Case’, and the recent GDPR regulations. Hannah discusses how individuals can have their data erased, and the implications on businesses.

May 2018 was a big month for the UK, and I’m not talking about the Royal Wedding! The General Data Protection Regulations (GDPR) came into force on the 25th May 2018 and with it a very interesting provision for British citizens.

A controversial case known as Google Spain led to the ruling that the Internet search engine must consider requests from individuals who wish to have their information and name removed from certain links. This ruling was known as the right to be forgotten and although not implemented into legislation as an explicit right, the GDPR changed this and the Right to Erasure was created.

Article 17 of the GDPR introduced a right for individuals to have their personal data removed. The Right to Erasure. Its use is not infinite and can only be applied in certain circumstances. However, it does give us the power to challenge the way our data is stored and utilised.

How can a request be made?

You can ask for your data to be erased either in writing or verbally. The organisation the request is made to has one month to provide a response.

When does the right to be forgotten apply?

There are various instances when you can request for your data to be erased. Below is a non-exhaustive list of occasions when the right is applicable:

  • The data is no longer necessary for the purpose the company originally collected/processed it for;
  • The company relies on your consent as a lawful basis for holding your data and you withdraw your consent;
  • Your data is being used for marketing purposes which you do not want to be the recipient of;
  • Your rights override the legitimate interests of collecting data;
  • If the data belongs to a child and was exchanged for “information society services”; and
  • Your data has been processed unlawfully

If your request is on the grounds of any of the above then the organisation must delete the data as soon as is reasonably possible.

Can companies refuse to comply with the request?

The short answer is yes. A company can refuse to comply with your request in certain circumstances. A reasonable fee to action a request may be imposed if it is manifestly excessive, groundless or repetitive. It can also be refused on the following grounds:

  • They are complying with legal obligations;
  • They are exercising their right to freedom of expression or information; and
  • The utilisation of the information is in the public interest

What do we think about this right?

The right of erasure has received mixed reviews. Some individuals think that in our current climate of social media and the permanence of the digital footprint, individuals should have the opportunity to protect their privacy by removing obsolete and incorrect information from the public forum. On the other hand some believe that the right to erasure is detrimental to freedom of speech, will curtail quality reporting and potentially result in the harm being caused to innocent parties due to relevant and important information being censored.

I believe the right to erasure is fundamental for the current digital age but it is vulnerable to misuse. The success of its utilisation hinges on the balance of an individual’s privacy and the public interest.

How can we help?

here are a number of factors that google will take into account when assessing whether content is removed, or whether it is in the public interest for it to remain. It is therefore extremely important that your submission to them should address all aspects.

Expert lawyers at Burton Copeland have experience in preparing submissions to publishers of online material and Google to ensure that negative information about individuals is removed from search results. If you have already made a submission to Google and had it rejected, then we can also assist in appealing the decision to the Information Commissioner's Office.

Hannah Costley,

Burton Copeland

Hannah is a trainee solicitor with Burton Copeland who is due to qualify as a solicitor later this year.

If you would like to discuss how we can help with removing unwanted content or data, please contact Hannah or Jonathan.