GDPR/right of erasure and online marketplaces/payment platforms I am in the early stages of designing an online marketplace platform for professional services. In the context of specifying what happens when a user hits the "delete account" button, I am considering the following scenario: User receives services from a provider User receives services from a provider User deletes their account and initiates a request for erasure under GDPR Provider now has no way of contacting the client either on- or off-platform to pursue their money. Is the situation as I see it possible? Would I have the right of passing along the info to the provider under these circumstances?
The provider has a legitimate interest in the data subjects data, and therefore they can override the right of deletion. See this example from the UK's Information Commissioners Office: A finance company is unable to locate a customer who has stopped making payments under a hire purchase agreement. The customer has moved house without notifying the finance company of their new address. The finance company wants to engage a debt collection agency to find the customer and seek repayment of the debt. It wants to disclose the customer’s personal data to the agency for this purpose. The finance company has a legitimate interest in recovering the debt it is owed and in order to achieve this purpose it is necessary for them to use a debt collection agency to track down the customer for payment owed. The finance company considers the balancing test and concludes that it is reasonable for its customers to expect that they will take steps to seek payment of outstanding debts. It is clear that the interests of the customer are likely to differ from those of the finance company in this situation, as it may suit the customer to evade paying their outstanding debt. However, the legitimate interest in passing the personal data to a debt collection agency in these circumstances would not be overridden by the interests of the customer. The balance would be in favour of the finance company. Article 17 of the GDPR, the &quot;Right to be forgotten&quot;, says this: 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 where one of the following grounds applies: A) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; B) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; C) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); In your example, it's obvious that the personal data is still necessary for performance of the contract (Art 6(1)(b)) such as collecting payment, or for fulfilling legal obligations (Art 6(1)(c), Art 17(3)(b)) such as the obligation to keep financial records. Thus, there continues to be a legal basis for processing/keeping the data and rejecting the erasure request in whole or in part. Things are slightly different when the legal basis for this processing was consent (Art 6(1)(a)) or a legitimate interest (Art 6(1)(f)). Consent can always be withdrawn, but this kind of data collection is not typically based on consent. You can sometimes object to processing under a legitimate interest (see Art 21) but that doesn't work when the data controller has overriding legitimate grounds to continue processing. Such overriding grounds might be the legitimate interest to pursue the debt, and Art 21(1) and Art 17(3)(e) explicitly call out the “establishment, exercise or defence of legal claims” as overriding grounds. So that covers requests under A, B and C. Things like legal basis and erasure/objection must be analyzed on a per-purpose basis, so it is possible that you could get a partial erasure, such as erasing information that's only necessary for marketing (compare also objection per Art 21(2)). But its quite clear to me that a data subject cannot get out of paying a bill by using the GDPR.
Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task.
Given a large database of email addresses that you can't prove have given consent to receive email, the only legal thing to do with it, is to (securely) delete it. (I am going to switch your question about a larger company to a bank: in the UK, big pharma is forbidden from advertising to individuals.) In principle the rules are the same for a huge bank and everything down to a self-employed plumber. In practice the plumber will be told "don't do that again" rather than fined. This case was treated under the Data Protection Act, which has a maximum fine of £500,000&nbsp;&ndash; so a big bank would probably have been fined more, but not necessarily much more. Under GDPR, fines are related to turnover, so the fine would be a lot bigger for a large bank. The incident is a year old now. Details here.
Doing this is OK according to the GDPR and other European laws. The relevant bit is GDPRs rules for Lawfulness of processing, and in particular Article 6 (1)b, which says that it is legal to do this if processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; In your particular case, signing up for using your app is "entering into a contract" and it is the data subject who has requested to use your app that is subject to this processing.
From a German perspective, it would be absolutely normal and expected that you're providing identity &amp; contact information publicly. Per §5 TMG (Impressumspflicht / Anbieterkennzeichnung) this is required for German tele-media offerings, such as websites or email providers, even if non-commercial. Whereas for you as an upstanding and diligent email provider an abuse@... address should be enough, the German context expects a street address where you could be served with a lawsuit… There absolutely are privacy and free speech issues with this compelled self-doxxing. But by running an email service, you're not just acting as a private person. Your privacy interests and the transparency and security interests of other people have to be balanced. Now since you are not in Germany, the TMG does not apply to you. You have no legal obligation to provide this information. However, the ISP also has no legal obligation to to deliver your email. The ISP does have an obligation to apply appropriate organizational and technical safety measures. It seems that one organizational measure they have found appropriate is that they will only deliver emails from providers that provide public contact information, as would be the norm in Germany. I am not entirely sure how the GDPR applies here. The GDPR doesn't really allow or prohibit disclosures of personal data, it just requires that every purpose of processing for personal data has a legal bases per GDPR Art 6. One such legal basis is a legitimate interest, which boils down to a balancing test between your rights and freedoms and other people's interests. I'm also not sure if the contact information should be classified as personal data in this context, because the contact info primarily relates to your role as an email provider. I'm also not sure if the ISP is processing your personal data in the sense of the GDPR when they merely require you to publish it on your own site. They would be processing it as soon as they scrape, store, or otherwise use this info.
However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction.
There is nothing in the GDPR requiring you to collect individual personally identifiable information. If the website has no need, and the website owner no desire, to collect such information, there is no requirement to do so. The GDPR requires that if such information is collected, that there is a lawful basis, and that it be handled appropriately and stored securely, and deleted when there is no longer a need to retain it, or on a proper request. If no such information is collected in the first place, all the rules about how to handle it do not apply. It is possible that some law of an individual country in the EU might mandate collection of some particular information, but I have not heard of any such requirement.
GDPR definitely applies. Your scenario seems to raise two questions: What is the legal basis for processing? Are the security measures appropriate? Legal basis Every processing activity of personal data requires a legal basis. Most well-known is consent, but there are six categories in Art 6(1) GDPR including legitimate interests and necessity for performing a contract with the data subject. Conditions on consent are laid out in Art 7 GDPR. You say that data subjects “explicitly agree to the website's privacy policy and GDPR”. The GDPR does not generally expect “agreement” to a privacy policy, as information per Art 13 is an unilateral notice. Such general agreement also cannot constitute valid consent. In the context of certifications, the legal basis would likely be necessity for performing a contract with the data subject: You were contracted to provide this validation service to the data subjects. You should however make it clear which information will be displayed on the validation page (other than a valid/not valid) response. For example, I am concerned that showing the email address would not be strictly necessary for providing the validation service. You should also consider whether this validation service is a core component of your certification service, or whether there should be an opt-in or opt-out here. Security Measures The GDPR requires that you implement appropriate security measures, “taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms” of the data subjects (see Art 32 GDPR). This gives you a lot of leeway to determine what measures are appropriate, but also criteria that you must consider in your determination. A number of security measures are explicitly suggested and must also be considered: pseudonymization and encryption ensuring confidentiality, integrity, availability, and resilience of your systems ability to restore the service (e.g. backups) processes for regularly testing and evaluating your measures Aside from generic IT security measures like backups and providing the service over a HTTPS connection, I would be concerned about “insecure direct object reference” style attacks on the database. If I know that certification no 1234 exists, I could try to get the information for other numbers like no 1233 and so on. This would leak personal data. Basic defenses could include requiring additional information such as the data subject's name to be provided, or using anti-bot measures such as captchas and rate limits. However, the real solution is to avoid sequential IDs, and to generate sufficiently large tokens with a cryptographically secure random number generator. Instead of a “certification number”, it would be better to view this as a “validation code”.