Personal Data Protection and Safeguarding Draft Act June 2019 subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question.79 The Article 29 Working Party of EU Data Protection Authorities (now the European Data Protection Board) has also issued guidance elaborating on the need to recognise freedom of expression when applying the right: [T]here is also an interest of internet users in receiving the information using the search engines. In that sense, the fundamental right of freedom of expression, understood as “the freedom to receive and impart information and ideas” in Article 11 of the European Charter of Fundamental Rights, has to be taken into consideration when assessing data subjects’ requests…. Search engines must take the interest of the public into account in having access to the information in their assessment of the circumstances surrounding each request. Results should not be de-listed if the interest of the public in having access to that information prevails. 80 The guidelines set out criteria for consideration, including: ● ● ● ● ● Does the data subject play a role in public life? Is the data subject a public figure? Is the data accurate? Does the data relate to the working life of the data subject? Was the original content published in the context of journalistic purposes? The EU GDPR further clarified the right in two provisions in the Right to Erasure section. Under Article 17(3)(a), the right of erasure shall not apply “for exercising the right of freedom of expression and information”. Further, it is also exempt under 17(3)(c) “for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes… in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing". Recital 65 emphasises the freedom of expression and archive rights: The further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. Similarly, the Explanatory Report for the modernised version of Convention 108 notes that the right to erasure and other rights are not unlimited: These rights may have to be reconciled with other rights and legitimate interests. They can, in accordance with Article 11, be limited only where this is provided for by law and constitutes a necessary and proportionate measure in a democratic society. ARTICLE 19, in a policy paper on the “right to be forgotten”, has proposed a seven-part test: ● ● ● ● Whether the information in question is of a private nature; Whether the applicant had a reasonable expectation of privacy, including the consideration of issues such as prior conduct, consent to publication, or prior existence of the information in the public domain; Whether the information at issue is in the public interest; Whether the information at issue pertains to a public figure; Case C-131/14, Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, 13 May 2014, p 81. 79 Article 29 Data Protection Working Party, Guidelines on the Implementation of the Court of Justice of the European Union Judgment on Google Spain And Inc V. Agencia Española De Protección De Datos (Aepd) and Mario Costeja González C-131/12 adopted on 26 November 2014 https://www.pdpjournals.com/docs/88502.pdf. 80 ARTICLE 19 – Free Word Centre, 60 Farringdon Rd, London EC1R 3GA – www.article19.org – +44 20 7324 2500 Page 24 of 58