Right to erasure

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Information Commissioner’s Office, “Guide to the GDPR”, retrieved on 9th May 2018, licensed under the Open Government Licence.

At a glance

  • The GDPR introduces a right for individuals to have personal data erased.
  • The right to erasure is also known as ‘the right to be forgotten’.
  • Individuals can make a request for erasure verbally or in writing.
  • You have one month to respond to a request.
  • The right is not absolute and only applies in certain circumstances.
  • This right is not the only way in which the GDPR places an obligation on you to consider whether to delete personal data.

Checklists

Preparing for requests for erasure

  • We know how to recognise a request for erasure and we understand when the right applies.
  • We have a policy for how to record requests we receive verbally.
  • We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

Complying with requests for erasure

  • We have processes in place to ensure that we respond to a request for erasure without undue delay and within one month of receipt.
  • We are aware of the circumstances when we can extend the time limit to respond to a request.
  • We understand that there is a particular emphasis on the right to erasure if the request relates to data collected from children.
  • We have procedures in place to inform any recipients if we erase any data we have shared with them.
  • We have appropriate methods in place to erase information.

In brief

  • What is the right to erasure?

    Under Article 17 of the GDPR individuals have the right to have personal data erased. This is also known as the ‘right to be forgotten’. The right is not absolute and only applies in certain circumstances.

  • When does the right to erasure apply?

    Individuals have the right to have their personal data erased if:

    • the personal data is no longer necessary for the purpose which you originally collected or processed it for;
    • you are relying on consent as your lawful basis for holding the data, and the individual withdraws their consent;
    • you are relying on legitimate interests as your basis for processing, the individual objects to the processing of their data, and there is no overriding legitimate interest to continue this processing;
    • you are processing the personal data for direct marketing purposes and the individual objects to that processing;
    • you have processed the personal data unlawfully (ie in breach of the lawfulness requirement of the 1st principle);
    • you have to do it to comply with a legal obligation; or
    • you have processed the personal data to offer information society services to a child.
  • How does the right to erasure apply to data collected from children?

    There is an emphasis on the right to have personal data erased if the request relates to data collected from children. This reflects the enhanced protection of children’s information, especially in online environments, under the GDPR.

    Therefore, if you process data collected from children, you should give particular weight to any request for erasure if the processing of the data is based upon consent given by a child – especially any processing of their personal data on the internet. This is still the case when the data subject is no longer a child, because a child may not have been fully aware of the risks involved in the processing at the time of consent.

    For further details about the right to erasure and children’s personal data please read our guidance on children’s privacy.

  • Do we have to tell other organisations about the erasure of personal data?

    The GDPR specifies two circumstances where you should tell other organisations about the erasure of personal data:

    • the personal data has been disclosed to others; or
    • the personal data has been made public in an online environment (for example on social networks, forums or websites).

    If you have disclosed the personal data to others, you must contact each recipient and inform them of the erasure, unless this proves impossible or involves disproportionate effort. If asked to, you must also inform the individuals about these recipients.

    The GDPR defines a recipient as a natural or legal person, public authority, agency or other body to which the personal data are disclosed. The definition includes controllers, processors and persons who, under the direct authority of the controller or processor, are authorised to process personal data.

    Where personal data has been made public in an online environment reasonable steps should be taken to inform other controllers who are processing the personal data to erase links to, copies or replication of that data. When deciding what steps are reasonable you should take into account available technology and the cost of implementation.

  • When does the right to erasure not apply?

    The right to erasure does not apply if processing is necessary for one of the following reasons:

    • to exercise the right of freedom of expression and information;
    • to comply with a legal obligation;
    • for the performance of a task carried out in the public interest or in the exercise of official authority;
    • for archiving purposes in the public interest, scientific research historical research or statistical purposes where erasure is likely to render impossible or seriously impair the achievement of that processing; or
    • for the establishment, exercise or defence of legal claims.

    The GDPR also specifies two circumstances where the right to erasure will not apply to special category data:

    • if the processing is necessary for public health purposes in the public interest (eg protecting against serious cross-border threats to health, or ensuring high standards of quality and safety of health care and of medicinal products or medical devices); or
    • if the processing is necessary for the purposes of preventative or occupational medicine (eg where the processing is necessary for the working capacity of an employee; for medical diagnosis; for the provision of health or social care; or for the management of health or social care systems or services). This only applies where the data is being processed by or under the responsibility of a professional subject to a legal obligation of professional secrecy (eg a health professional).

    For more information about special categories of data please see our Guide to the GDPR.

  • Can we refuse to comply with a request for other reasons?

    You can refuse to comply with a request for erasure if it is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

    If you consider that a request is manifestly unfounded or excessive you can:

    • request a “reasonable fee” to deal with the request; or
    • refuse to deal with the request.

    In either case you will need to justify your decision.

    You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

    In more detail – Data Protection Act 2018

    There are other exemptions from the right to erasure in the DPA 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide further guidance on the application of these exemptions in due course.

  • What should we do if we refuse to comply with a request for erasure?

    You must inform the individual without undue delay and within one month of receipt of the request.

    You should inform the individual about:

    • the reasons you are not taking action;
    • their right to make a complaint to the ICO or another supervisory authority; and
    • their ability to seek to enforce this right through a judicial remedy.

    You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

  • How do we recognise a request?

    The GDPR does not specify how to make a valid request. Therefore, an individual can make a request for erasure verbally or in writing. It can also be made to any part of your organisation and does not have to be to a specific person or contact point.

    A request does not have to include the phrase ‘request for erasure’ or Article 17 of the GDPR, as long as one of the conditions listed above apply.

    This presents a challenge as any of your employees could receive a valid verbal request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

    Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

  • Can we charge a fee?

    No, in most cases you cannot charge a fee to comply with a request for erasure.

    However, as noted above, where the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

  • How long do we have to comply?

    You must act upon the request without undue delay and at the latest within one month of receipt.

    You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

    Example

    An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

    If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

    If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

    This means that the exact number of days you have to comply with a request varies, depending on the month in which the request is made.

    Example

    An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

    If 30 April falls on a weekend or is a public holiday, the organisation has until the end of the next working day to comply.

    For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

  • Can we extend the time for a response?

    You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know without undue delay and within one month of receiving their request and explain why the extension is necessary.

    However, it is the ICO’s view that it is unlikely to be reasonable to extend the time limit if:

    • it is manifestly unfounded or excessive;
    • an exemption applies; or
    • you are requesting proof of identity before considering the request.
  • Can we ask an individual for ID?

    If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

    You must let the individual know without undue delay and within one month that you need more information from them to confirm their identity. You do not need to comply with the request until you have received the additional information.

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