Does the Right to Be Forgotten Work in the USA for Google Search Results?

Also known as the right to erasure, the GDPR gives individuals the right to ask organizations to delete their personal data. But organizations don’t always have to do it. Here we explain when the right to be forgotten applies and when it doesn’t.

The General Data Protection Regulation (GDPR) governs how personal data must be collected, processed, and erased. The “right to be forgotten,” which received a lot of press after the 2014 judgment from the EU Court of Justice, set the precedent for the right of erasure provision contained in the GDPR. Of course, given competing interests and the hyper-connected nature of the Internet, the right to be forgotten is much more complicated than an individual simply requesting that an organization erase their personal data. This article takes a closer look at when people can make a right to be forgotten request, the value it adds for EU residents, and how organizations can create a right to be forgotten form to ensure GDPR compliance.

What is the right to be forgotten?

The right to be forgotten appears in Recitals 65 and 66 and in Article 17 of the GDPR. It states, “The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay” if one of a number of conditions applies. “Undue delay” is considered to be about a month. You must also take reasonable steps to verify the person requesting erasure is actually the data subject.

The right to be forgotten dovetails with people’s right to access their personal information in Article 15. The right to control one’s data is meaningless if people cannot take action when they no longer consent to processing, when there are significant errors within the data, or if they believe information is being stored unnecessarily. In these cases, an individual can request that the data be erased. But this is not an absolute right. If it were, the critics who argue that the right to be forgotten amounts to nothing more than a rewriting of history would be correct. Thus, the GDPR walks a fine line on data erasure.

When does the right to be forgotten apply?

In Article 17, the GDPR outlines the specific circumstances under which the right to be forgotten applies. An individual has the right to have their personal data erased if:

• The personal data is no longer necessary for the purpose an organization originally collected or processed it.
• An organization is relying on an individual’s consent as the lawful basis for processing the data and that individual withdraws their consent.
• An organization is relying on legitimate interests as its justification for processing an individual’s data, the individual objects to this processing, and there is no overriding legitimate interest for the organization to continue with the processing.
• An organization is processing personal data for direct marketing purposes and the individual objects to this processing.
• An organization processed an individual’s personal data unlawfully.
• An organization must erase personal data in order to comply with a legal ruling or obligation.
• An organization has processed a child’s personal data to offer their information society services.

However, an organization’s right to process someone’s data might override their right to be forgotten. Here are the reasons cited in the GDPR that trump the right to erasure:

• The data is being used to exercise the right of freedom of expression and information.
• The data is being used to comply with a legal ruling or obligation.
• The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority.
• The data being processed is necessary for public health purposes and serves in the public interest.
• The data being processed is necessary to perform preventative or occupational medicine. This only applies when the data is being processed by a health professional who is subject to a legal obligation of professional secrecy.
• The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing.
• The data is being used for the establishment of a legal defense or in the exercise of other legal claims.

Furthermore, an organization can request a “reasonable fee” or deny a request to erase personal data if the organization can justify that the request was unfounded or excessive.

As you can see, there are many variables at play and each request will have to be evaluated individually. Add to that the technical burden of keeping track of all the places an individual’s personal data is stored or processed and it is easy to see why the GDPR’s new privacy rights can be a significant compliance burden for some organizations.

Right to be forgotten request template

The GDPR does not specify what a valid request to erasure entails. An individual can make a request for erasure verbally or in writing. This request can also be made to any member of your organization, not just to a designated contact. As long as a request meets the conditions above, it is valid, even if it does not refer to “Request for Erasure” the “Right to be Forgotten,” Article 17, or the GDPR.

This can create a challenge for an organization as any employee could receive a valid verbal request. Below is a sample “Right to Erasure” request form that could help you streamline the process. Note that this is just a template and can be modified to suit your organization’s needs.

RIGHT TO ERASURE REQUEST FORM (PDF)

RIGHT TO ERASURE REQUEST FORM

You are entitled to request us to erase any personal data we hold about you under EU General Data Protection Regulation (GDPR).

We will do our best to respond promptly and in any event within one month of the following:

• Our receipt of your written request; or
• Our receipt of any further information we may ask you to provide to enable us to comply with your request, whichever happens to be later.

The information you supply in this form will only be used for the purposes of identifying the personal data you are requesting that we erase and responding to your request. You are not obliged to complete this form to make a request, but doing so will make it easier for us to process your request quickly.

SECTION 1: Details of the person requesting information

Full name:

Address:

Contact telephone number:

Email address:

SECTION 2: Are you the data subject?

Please tick the appropriate box and read the instructions which follow it.

• YES: I am the data subject. I enclose proof of my identity (see below). (Please go to Section 4)
• NO: I am acting on behalf of the data subject. I have enclosed the data subject’s written authority and proof of the data subject’s identity and my own identity (see below). (Please go to Section 3)

To ensure we are erasing data of the right person we require you to provide us with proof of your identity and of your address. Please supply us with a photocopy or scanned image (do not send the originals) of one or both of the following:

1) Proof of Identity

Passport, photo driver’s license, national identity card, birth certificate.

2) Proof of Address

Utility bill, bank statement, credit card statement (no more than 3 months old); current driver’s license;

If we are not satisfied you are who you claim to be, we reserve the right to refuse to grant your request.

SECTION 3: Details of the data subject (if different from section 1)

Full name:

Address:

Contact telephone number:

Email address:

SECTION 4: Reason for erasure request

Given the sensitive nature of erasing personal data, GDPR Article 17(1) requires certain conditions to be met before a request may be considered. Please supply us with the reason you wish your data to be erased and please attach any justifying documents to this one.

Please tick the appropriate box:

• You feel your personal data is no longer necessary for the purposes for which we originally collected it.
• You no longer consent to our processing of your personal data.
• You object to our processing of your personal data as is your right under Article 21 of the GDPR.
• You feel your personal data has been unlawfully processed.
• You feel we are subject to a legal obligation of the EU or Member State that requires the erasure of your personal data.
• You are a child, you represent a child, or you were a child at the time of the data processing and you feel your personal data was used to offer you information society services.

SECTION 5: What information do you wish to erase?

Please describe the information you wish to erase. Please provide any relevant details you think will help us to identify the information. Providing the URL for each link you wish to be removed would be helpful.

Also, please explain, if it is not abundantly clear, why the linked page is about you or the person you are representing on this form.

Please note that. In certain circumstances, where erasure would adversely affect the freedom of expression, contradict a legal obligation, act against the public interest in the area of public health, act against the public interest in the area of scientific or historical research, or prohibit the establishment of a legal defense or exercise of other legal claims, we may not be able to erase the information you requested in accordance with article 17(3) of the GDPR. In such cases you will be informed promptly and given full reasons for that decision.

While in most cases we will be happy to erase the personal data you request, we nevertheless reserve the right, in accordance with Article 12(5) of the GDPR, to charge a fee or refuse the request if it is considered to be “manifestly unfounded or excessive.” However we will make every effort to provide you with the erasure of your personal data if suitable.

SECTION 6: Declaration

Please note that any attempt to mislead may result in prosecution.

I confirm that I have read and understood the terms of this subject access form and certify that the information given in this application to ______________ is true. I understand that it is necessary for ________________ to confirm my/the data subject’s identity and it may be necessary to obtain more detailed information in order to locate the correct personal data.

Signed: ………………………………………… Date: ……………..

Documents which must accompany this application:

• Evidence of your identity (see section 2)
• Evidence of the data subject’s identity (if different from above)
• Authorization from the data subject to act on their behalf (if applicable)
• Justification for erasure of data (see section 4)