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.
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.
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.
Do we have to erase personal data from backup systems?
If a valid erasure request is received and no exemption applies then you will have to take steps to ensure erasure from backup systems as well as live systems. Those steps will depend on your particular circumstances, your retention schedule (particularly in the context of its backups), and the technical mechanisms that are available to you.
You must be absolutely clear with individuals as to what will happen to their data when their erasure request is fulfilled, including in respect of backup systems.
It may be that the erasure request can be instantly fulfilled in respect of live systems, but that the data will remain within the backup environment for a certain period of time until it is overwritten.
The key issue is to put the backup data ‘beyond use’, even if it cannot be immediately overwritten. You must ensure that you do not use the data within the backup for any other purpose, ie that the backup is simply held on your systems until it is replaced in line with an established schedule. Provided this is the case it may be unlikely that the retention of personal data within the backup would pose a significant risk, although this will be context specific. For more information on what we mean by ‘putting data beyond use’ see our old guidance under the 1998 Act on deleting personal data (this will be updated in due course).
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; 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.
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?
If an exemption applies, you can refuse to comply with a request for erasure (wholly or partly). Not all of the exemptions apply in the same way, and you should look at each exemption carefully to see how it applies to a particular request. For more information, please see our guidance on Exemptions.
You can also refuse to comply with a request if it is:
- manifestly unfounded; or
In order to decide if a request is manifestly unfounded or excessive you must consider each request on a case-by-case basis. You should not have a blanket policy.
You must be able to demonstrate to the individual why you consider the request is manifestly unfounded or excessive and, if asked, explain your reasons to the Information Commissioner.
What does manifestly unfounded mean?
A request may be manifestly unfounded if:
- the individual clearly has no intention to exercise their right to erasure. For example an individual makes a request, but then offers to withdraw it in return for some form of benefit from the organisation; or
- the request is malicious in intent and is being used to harass an organisation with no real purposes other than to cause disruption. For example:
- the individual has explicitly stated, in the request itself or in other communications, that they intend to cause disruption;
- the request makes unsubstantiated accusations against you or specific employees;
- the individual is targeting a particular employee against whom they have some personal grudge; or
- the individual systematically sends different requests to you as part of a campaign, eg once a week, with the intention of causing disruption.
This is not a simple tick list exercise that automatically means a request is manifestly unfounded. You must consider a request in the context in which it is made, and you are responsible for demonstrating that it is manifestly unfounded.
Also, you should not presume that a request is manifestly unfounded because the individual has previously submitted requests which have been manifestly unfounded or excessive or if it includes aggressive or abusive language.
The inclusion of the word “manifestly” means there must be an obvious or clear quality to it being unfounded. You should consider the specific situation and whether the individual genuinely wants to exercise their rights. If this is the case, it is unlikely that the request will be manifestly unfounded.
An individual believes that information held about them is inaccurate. They repeatedly request its correction but you have previously investigated and told them you regard it as accurate.
The individual continues to make requests along with unsubstantiated claims against you as the controller.
You refuse the most recent request because it is manifestly unfounded and you notify the individual of this.
What does excessive mean?
A request may be excessive if:
- it repeats the substance of previous requests; or
- it overlaps with other requests.
However, it depends on the particular circumstances. It will not necessarily be excessive just because the individual:
- makes a request about the same issue. An individual may have legitimate reasons for making requests that repeat the content of previous requests. For example, if the controller has not handled previous requests properly;
- makes an overlapping request, if it relates to a completely separate set of information; or
- previously submitted requests which have been manifestly unfounded or excessive.
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?
In most cases you cannot charge a fee to comply with a request for erasure.
However, you can charge a “reasonable fee” for the administrative costs of complying with the request if it is manifestly unfounded or excessive. 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.
Alternatively, you can refuse to comply with a manifestly unfounded or excessive request.
How long do we have to comply?
You must comply with a request for erasure without undue delay and at the latest within one month of receipt of the request or (if later) within one month of receipt of:
- any information requested to confirm the requester’s identity (see ‘Can we ask an individual for ID?’); or
- a fee (only in certain circumstances – see ‘Can we charge a fee?’)
You should calculate the time limit from the day you receive the request (whether it is a working day or not) until the corresponding calendar date in the next month.
An organisation receives a request on 3 September. The time limit will start from the same day. This gives the organisation until 3 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 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 was made.
An organisation receives a request on 31 March. The time limit starts from the same day. 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 within one month of receiving their request and explain why the extension is necessary.
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.
Thank you for reading.