+Artigo 17.o Direito ao apagamento dos dados («direito a ser esquecido»)
---+Artigo 17.o 1.
---+Artigo 17.o 2.
---+Artigo 17.o 3.
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Artigo 17.o Direito ao apagamento dos dados («direito a ser esquecido»)
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1. Visão geral
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Regulamentação |
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Artigo 17.o 1.
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O titular tem o direito de obter do responsável pelo tratamento o apagamento dos seus dados pessoais, sem demora injustificada, e este tem a obrigação de apagar os dados pessoais, sem demora injustificada, quando se aplique um dos seguintes motivos:
a)
Os dados pessoais deixaram de ser necessários para a finalidade que motivou a sua recolha ou tratamento;
b)
O titular retira o consentimento em que se baseia o tratamento dos dados nos termos do artigo 6.o, n.o 1, alínea a), ou do artigo 9.o, n.o 2, alínea a) e se não existir outro fundamento jurídico para o referido tratamento;
c)
O titular opõe-se ao tratamento nos termos do artigo 21.o, n.o 1, e não existem interesses legítimos prevalecentes que justifiquem o tratamento, ou o titular opõe-se ao tratamento nos termos do artigo 21.o, n.o 2;
d)
Os dados pessoais foram tratados ilicitamente;
e)
Os dados pessoais têm de ser apagados para o cumprimento de uma obrigação jurídica decorrente do direito da União ou de um Estado-Membro a que o responsável pelo tratamento esteja sujeito;
f)
Os dados pessoais foram recolhidos no contexto da oferta de serviços da sociedade da informação referida no artigo 8.o, n.o 1.
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Artigo 17.o 2.
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Quando o responsável pelo tratamento tiver tornado públicos os dados pessoais e for obrigado a apagá-los nos termos do n.o 1, toma as medidas que forem razoáveis, incluindo de caráter técnico, tendo em consideração a tecnologia disponível e os custos da sua aplicação, para informar os responsáveis pelo tratamento efetivo dos dados pessoais de que o titular dos dados lhes solicitou o apagamento das ligações para esses dados pessoais, bem como das cópias ou reproduções dos mesmos.
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Artigo 17.o 3.
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Os n.os 1 e 2 não se aplicam na medida em que o tratamento se revele necessário:
a)
Ao exercício da liberdade de expressão e de informação;
b)
Ao cumprimento de uma obrigação legal que exija o tratamento prevista pelo direito da União ou de um Estado-Membro a que o responsável esteja sujeito, ao exercício de funções de interesse público ou ao exercício da autoridade pública de que esteja investido o responsável pelo tratamento;
c)
Por motivos de interesse público no domínio da saúde pública, nos termos do artigo 9.o, n.o 2, alíneas h) e i), bem como do artigo 9.o, n.o 3;
d)
Para fins de arquivo de interesse público, para fins de investigação científica ou histórica ou para fins estatísticos, nos termos do artigo 89.o, n.o 1, na medida em que o direito referido no n.o 1 seja suscetível de tornar impossível ou prejudicar gravemente a obtenção dos objetivos desse tratamento; ou
e)
Para efeitos de declaração, exercício ou defesa de um direito num processo judicial.
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1.1 Referências
1.2 Requisitos identificados
1.3 Normas relacionadas
2. Requisitos identificados
Requisitos
| Fonte |
Requisito |
3. Normas relacionadas
Normas
| Fonte |
Requisito |
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SCF
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Personal Data (PD) Categories
Description
Mechanisms exist to define and implement data handling and protection requirements for specific categories of sensitive Personal Data (PD).
Possible Solutions & Considerations
Micro-Small Business (<10 staff) / BLS Firm Size Classes 1-2
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Small Business (10-49 staff) / BLS Firm Size Classes 3-4
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Medium Business (50-249 staff) / BLS Firm Size Classes 5-6
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Large Business (250-999 staff) / BLS Firm Size Classes 7-8
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Enterprise (> 1,000 staff) / BLS Firm Size Class 9
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
SCR-CMM
Level 0 Not Performed
Practices are non-existent, based on the inability to demonstrate an implemented and operational capability. A reasonable person would conclude the control is not being performed.
Level 1 Performed Informally
SCR-CMM Level 1 criteria definitions are not available for this control: ▪ A reasonable person would conclude this control requires a structured process. ▪ At this level of maturity, the "ad hoc" nature of performing a capability informally would indicate the intent of the control is not met due to a lack of consistency and formality.
Level 2 Planned Tracked
Privacy (PRI) capabilities are requirements-driven, but are not standardized across the entity (e.g., local/regional level consistency). Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Policies and standards associated with PRI domain capabilities are formally documented and centrally-managed by the entity. ▪ Standardized Operating Procedures (SOP) associated with PRI domain capabilities are documented and maintained by process owners. ▪ IT and/or cybersecurity personnel work with business stakeholders and process owners to appropriately scope and reasonably implement cybersecurity and data protection controls associated with PRI domain capabilities to address applicable statutory, regulatory and/or contractual requirements for Technology Assets, Applications, Services and/or Data (TAASD). ▪ Data privacy management-related controls are primarily administrative and preventative in nature (e.g., policies, standards and procedures & guidelines). ▪ Data privacy management may be a defined function (e.g., team or department) or assigned as an additional duty to existing IT and/or cybersecurity personnel. ▪ The data privacy program is developed to work with IT and cybersecurity staff to ensure that applicable statutory, regulatory and/or contractual data privacy obligations for Personal Data (PD) are properly identified and implemented.
Level 3 Well Defined
Privacy (PRI) capabilities are standardized across the entity for applicability to People, Processes, Technologies, Data and/or Facilities (PPTDF) to ensure consistency for Technology Assets, Applications, Services and/or Data (TAASD). Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Policies and standards associated with PRI domain capabilities are formally documented and centrally-managed by the entity's Governance, Risk & Compliance (GRC) team, or similar function. ▪ Standardized Operating Procedures (SOP) associated with PRI domain capabilities are well-documented and kept current by process owners. ▪ A data privacy team, or similar function, is appropriately staffed and supported to implement and maintain PRI domain capabilities. ▪ Technology is leveraged to enhance the efficiency and accuracy of data privacy operations (e.g., privacy notice management software and customer management solution). ▪ The entity's Governance, Risk & Compliance (GRC) team, or similar function, works with business stakeholders and process owners to appropriately scope and reasonably implement cybersecurity and data protection controls associated with PRI domain capabilities to address Minimum Compliance Requirements (MCR) (e.g., applicable statutory, regulatory and/or contractual requirements) and Discretionary Security Requirements (DSR) (e.g., entity-required controls). ▪ An implemented and operational capability exists to define and implement data handling and protection requirements for specific categories of sensitive Personal Data (PD).
Level 4 Quantitatively Controlled
Utilize SCR-CMM Level 3 criteria definitions: ▪ There are no defined Level 4 criteria, since it is reasonable to assume a quantitatively-controlled process is not necessary to operationalize this control. ▪ While it may be possible to develop “metrics-driven” capabilities for this control, the criteria would be organization-specific to define.
Level 5 Continuously Improving
Utilize SCR-CMM Level 3 or Level 4 (if available) criteria definitions: ▪ There are no defined Level 5 criteria, since it is reasonable to assume a continuously-improving process is not necessary to operationalize this control. ▪ Level 5 capabilities should be considered “world-class” where the control builds on Level 4 capabilities, but are continuously improving through Artificial Intelligence (AI) and/or Machine Learning (ML) technologies. ▪ While it may be possible to develop responsive capabilities for this control through the use of AI and/or ML technologies, the criteria would be organization-specific to define.
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SCF
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Data Subject Empowerment
Description
Mechanisms exist to provide authenticated data subjects the ability to: (1) Access their Personal Data (PD) that is being processed, stored and shared, except where the burden, risk or expense of providing access would be disproportionate to the benefit offered to the data subject through granting access; (2) Obtain answers on the specifics of how their PD is collected, received, processed, stored, transmitted, shared, updated and/or disposed; (3) Obtain the source(s) of their PD; (4) Obtain the categories of their PD being collected, received, processed, stored and shared; (5) Request correction to their PD due to inaccuracies; (6) Request erasure of their PD; and (7) Restrict the further collecting, receiving, processing, storing, transmitting, updated and/or sharing of their PD.
Possible Solutions & Considerations
Micro-Small Business (<10 staff) / BLS Firm Size Classes 1-2
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Small Business (10-49 staff) / BLS Firm Size Classes 3-4
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Medium Business (50-249 staff) / BLS Firm Size Classes 5-6
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Large Business (250-999 staff) / BLS Firm Size Classes 7-8
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Enterprise (> 1,000 staff) / BLS Firm Size Class 9
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
SCR-CMM
Level 0 Not Performed
Practices are non-existent, based on the inability to demonstrate an implemented and operational capability. A reasonable person would conclude the control is not being performed.
Level 1 Performed Informally
SCR-CMM Level 1 criteria definitions are not available for this control: ▪ A reasonable person would conclude this control requires a structured process. ▪ At this level of maturity, the "ad hoc" nature of performing a capability informally would indicate the intent of the control is not met due to a lack of consistency and formality.
Level 2 Planned Tracked
Privacy (PRI) capabilities are requirements-driven, but are not standardized across the entity (e.g., local/regional level consistency). Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Policies and standards associated with PRI domain capabilities are formally documented and centrally-managed by the entity. ▪ Standardized Operating Procedures (SOP) associated with PRI domain capabilities are documented and maintained by process owners. ▪ IT and/or cybersecurity personnel work with business stakeholders and process owners to appropriately scope and reasonably implement cybersecurity and data protection controls associated with PRI domain capabilities to address applicable statutory, regulatory and/or contractual requirements for Technology Assets, Applications, Services and/or Data (TAASD). ▪ Data privacy management-related controls are primarily administrative and preventative in nature (e.g., policies, standards and procedures & guidelines). ▪ Data privacy management may be a defined function (e.g., team or department) or assigned as an additional duty to existing IT and/or cybersecurity personnel. ▪ The data privacy program is developed to work with IT and cybersecurity staff to ensure that applicable statutory, regulatory and/or contractual data privacy obligations for Personal Data (PD) are properly identified and implemented.
Level 3 Well Defined
Privacy (PRI) capabilities are standardized across the entity for applicability to People, Processes, Technologies, Data and/or Facilities (PPTDF) to ensure consistency for Technology Assets, Applications, Services and/or Data (TAASD). Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Policies and standards associated with PRI domain capabilities are formally documented and centrally-managed by the entity's Governance, Risk & Compliance (GRC) team, or similar function. ▪ Standardized Operating Procedures (SOP) associated with PRI domain capabilities are well-documented and kept current by process owners. ▪ A data privacy team, or similar function, is appropriately staffed and supported to implement and maintain PRI domain capabilities. ▪ Technology is leveraged to enhance the efficiency and accuracy of data privacy operations (e.g., privacy notice management software and customer management solution). ▪ The entity's Governance, Risk & Compliance (GRC) team, or similar function, works with business stakeholders and process owners to appropriately scope and reasonably implement cybersecurity and data protection controls associated with PRI domain capabilities to address Minimum Compliance Requirements (MCR) (e.g., applicable statutory, regulatory and/or contractual requirements) and Discretionary Security Requirements (DSR) (e.g., entity-required controls). ▪ An implemented and operational capability exists to provide authenticated data subjects the ability to: (1) Access their Personal Data (PD) that is being processed, stored and shared, except where the burden, risk or expense of providing access would be disproportionate to the benefit offered to the data subject through granting access; (2) Obtain answers on the specifics of how their PD is collected, received, processed, stored, transmitted, shared, updated and/or disposed; (3) Obtain the source(s) of their PD; (4) Obtain the categories of their PD being collected, received, processed, stored and shared; (5) Request correction to their PD due to inaccuracies; (6) Request erasure of their PD; and (7) Restrict the further collecting, receiving, processing, storing, transmitting, updated and/or sharing of their PD.
Level 4 Quantitatively Controlled
Privacy (PRI) capabilities, in addition to being standardized across the entity and centrally managed to ensure consistency across Technology Assets, Applications, Services and/or Data (TAASD), efforts are metrics driven to provide sufficient insight for decision makers to predict optimal performance, ensure continued operations and/or identify areas for improvement. Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Applicable SCR-CMM Level 3 (Well Defined) capabilities are implemented and operational. ▪ Metrics reporting includes quantitative analysis of Key Performance Indicators (KPIs). ▪ Metrics reporting includes quantitative analysis of Key Risk Indicators (KRIs). ▪ Scope of metrics, KPIs and KRIs covers organization-wide cybersecurity and data protection controls, including functions performed by third-parties. ▪ Organizational leadership maintains a formal process to objectively review and respond to metrics, KPIs and KRIs (e.g., monthly or quarterly review). ▪ Based on metrics analysis, process improvement recommendations are submitted for review and are handled in accordance with change control processes. ▪ Business and technical stakeholders are involved in reviewing and approving proposed changes to evolve capabilities.
Level 5 Continuously Improving
Utilize SCR-CMM Level 3 or Level 4 (if available) criteria definitions: ▪ There are no defined Level 5 criteria, since it is reasonable to assume a continuously-improving process is not necessary to operationalize this control. ▪ Level 5 capabilities should be considered “world-class” where the control builds on Level 4 capabilities, but are continuously improving through Artificial Intelligence (AI) and/or Machine Learning (ML) technologies. ▪ While it may be possible to develop responsive capabilities for this control through the use of AI and/or ML technologies, the criteria would be organization-specific to define.
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SCF
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Right to Erasure
Description
Mechanisms exist to maintain a process to erase a data subject's Personal Data (PD), in accordance with applicable laws, regulations and contractual obligations pertaining to the retention of their PD.
Possible Solutions & Considerations
Micro-Small Business (<10 staff) / BLS Firm Size Classes 1-2
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Small Business (10-49 staff) / BLS Firm Size Classes 3-4
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Medium Business (50-249 staff) / BLS Firm Size Classes 5-6
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Large Business (250-999 staff) / BLS Firm Size Classes 7-8
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
Enterprise (> 1,000 staff) / BLS Firm Size Class 9
∙ Data classification program ∙ Data privacy program ∙ Data Protection Impact Assessment (DPIA) ∙ Product / project management
SCR-CMM
Level 0 Not Performed
Practices are non-existent, based on the inability to demonstrate an implemented and operational capability. A reasonable person would conclude the control is not being performed.
Level 1 Performed Informally
SCR-CMM Level 1 criteria definitions are not available for this control: ▪ A reasonable person would conclude this control requires a structured process. ▪ At this level of maturity, the "ad hoc" nature of performing a capability informally would indicate the intent of the control is not met due to a lack of consistency and formality.
Level 2 Planned Tracked
SCR-CMM Level 2 criteria definitions are not available for this control: ▪ A reasonable person would conclude a well-defined and standardized process is required. ▪ At this level of maturity, the “requirements-driven” nature of performing the control is focused on a localized and/or regionalized implementation, not uniform and consistent across the organization. ▪ Requirements are narrowly scoped for applicability and are primarily derived from compliance obligations (e.g., laws, regulations and contracts).
Level 3 Well Defined
Privacy (PRI) capabilities are standardized across the entity for applicability to People, Processes, Technologies, Data and/or Facilities (PPTDF) to ensure consistency for Technology Assets, Applications, Services and/or Data (TAASD). Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Policies and standards associated with PRI domain capabilities are formally documented and centrally-managed by the entity's Governance, Risk & Compliance (GRC) team, or similar function. ▪ Standardized Operating Procedures (SOP) associated with PRI domain capabilities are well-documented and kept current by process owners. ▪ A data privacy team, or similar function, is appropriately staffed and supported to implement and maintain PRI domain capabilities. ▪ Technology is leveraged to enhance the efficiency and accuracy of data privacy operations (e.g., privacy notice management software and customer management solution). ▪ The entity's Governance, Risk & Compliance (GRC) team, or similar function, works with business stakeholders and process owners to appropriately scope and reasonably implement cybersecurity and data protection controls associated with PRI domain capabilities to address Minimum Compliance Requirements (MCR) (e.g., applicable statutory, regulatory and/or contractual requirements) and Discretionary Security Requirements (DSR) (e.g., entity-required controls). ▪ An implemented and operational capability exists to maintain a process to erase a data subject's Personal Data (PD), in accordance with applicable laws, regulations and contractual obligations pertaining to the retention of their PD.
Level 4 Quantitatively Controlled
Privacy (PRI) capabilities, in addition to being standardized across the entity and centrally managed to ensure consistency across Technology Assets, Applications, Services and/or Data (TAASD), efforts are metrics driven to provide sufficient insight for decision makers to predict optimal performance, ensure continued operations and/or identify areas for improvement. Capability criteria associated with this control reasonably expect the following criteria to exist: ▪ Applicable SCR-CMM Level 3 (Well Defined) capabilities are implemented and operational. ▪ Metrics reporting includes quantitative analysis of Key Performance Indicators (KPIs). ▪ Metrics reporting includes quantitative analysis of Key Risk Indicators (KRIs). ▪ Scope of metrics, KPIs and KRIs covers organization-wide cybersecurity and data protection controls, including functions performed by third-parties. ▪ Organizational leadership maintains a formal process to objectively review and respond to metrics, KPIs and KRIs (e.g., monthly or quarterly review). ▪ Based on metrics analysis, process improvement recommendations are submitted for review and are handled in accordance with change control processes. ▪ Business and technical stakeholders are involved in reviewing and approving proposed changes to evolve capabilities.
Level 5 Continuously Improving
Utilize SCR-CMM Level 3 or Level 4 (if available) criteria definitions: ▪ There are no defined Level 5 criteria, since it is reasonable to assume a continuously-improving process is not necessary to operationalize this control. ▪ Level 5 capabilities should be considered “world-class” where the control builds on Level 4 capabilities, but are continuously improving through Artificial Intelligence (AI) and/or Machine Learning (ML) technologies. ▪ While it may be possible to develop responsive capabilities for this control through the use of AI and/or ML technologies, the criteria would be organization-specific to define.
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