12/10/2019
CURIA - Documents
55
In accordance with Article 17(1) of the regulation, the data subject has the right to obtain from the
controller the erasure of personal data concerning him or her without undue delay and the controller has
the obligation to erase those data without undue delay where one of the grounds set out in that
provision applies. As grounds, the provision mentions the cases in which the personal data are no
longer necessary in relation to the purposes for which they were processed; the data subject withdraws
consent on which the processing is based and there is no other legal ground for the processing; the data
subject objects to the processing pursuant to Article 21(1) or (2) of the regulation, which replaces
Article 14 of Directive 95/46; the data have been unlawfully processed; the data have to be erased for
compliance with a legal obligation; or the data have been collected in relation to the offer of
information society services to children.
56
However, Article 17(3) of Regulation 2016/679 states that Article 17(1) of the regulation is not to
apply to the extent that the processing is necessary on one of the grounds set out in Article 17(3).
Among those grounds is, in Article 17(3)(a) of the regulation, the exercise of the right of freedom of
expression and information.
57
The circumstance that Article 17(3)(a) of Regulation 2016/679 now expressly provides that the data
subject’s right to erasure is excluded where the processing is necessary for the exercise of the right of
information, guaranteed by Article 11 of the Charter, is an expression of the fact that the right to
protection of personal data is not an absolute right but, as recital 4 of the regulation states, must be
considered in relation to its function in society and be balanced against other fundamental rights, in
accordance with the principle of proportionality (see also judgment of 9 November 2010, Volker und
Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662, paragraph 48, and Opinion 1/15
(EU-Canada PNR Agreement) of 26 July 2017, EU:C:2017:592, paragraph 136).
58
In that context, it should be recalled that Article 52(1) of the Charter accepts that limitations may be
imposed on the exercise of rights such as those set forth in Articles 7 and 8 of the Charter, as long as
the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to
the principle of proportionality, are necessary and genuinely meet objectives of general interest
recognised by the European Union or the need to protect the rights and freedoms of others (judgment of
9 November 2010, Volker und Markus Schecke and Eifert, C-92/09 and C-93/09, EU:C:2010:662,
paragraph 50).
59
Regulation 2016/679, in particular Article 17(3)(a), thus expressly lays down the requirement to strike
a balance between the fundamental rights to privacy and protection of personal data guaranteed by
Articles 7 and 8 of the Charter, on the one hand, and the fundamental right of freedom of information
guaranteed by Article 11 of the Charter, on the other.
60
It is in the light of those considerations that an examination must be made of the conditions in which
the operator of a search engine is required to accede to a request for de-referencing and thus to delete
from the list of results displayed following a search on the basis of the data subject’s name the link to a
web page on which there are personal data falling within the special categories in Article 8(1) and (5)
of Directive 95/46.
61
It must be stated, to begin with, that the processing by the operator of a search engine of the special
categories of data referred to in Article 8(1) of Directive 95/46 is capable in principle of being covered
by the exceptions in Article 8(2)(a) and (e), mentioned by the referring court, which provides that the
prohibition is not to apply where the data subject has given his or her explicit consent to such
processing, except where the laws of the Member State concerned prohibit such consent, or where the
processing relates to data which are manifestly made public by the data subject. Those exceptions have
now been repeated in Article 9(2)(a) and (e) of Regulation 2016/679. In addition, Article 9(2)(g) of the
regulation, which essentially reproduces Article 8(4) of Directive 95/46, allows the processing of those
categories of data where it is necessary for reasons of substantial public interest, on the basis of
European Union or Member State law which must be proportionate to the aim pursued, respect the
essence of the right to data protection and provide for suitable and specific measures to safeguard the
fundamental rights and the interests of the data subject.
curia.europa.eu/juris/document/document_print.jsf?docid=218106&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=2571804
14/19
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