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Right To Be Forgotten

The "Information Age", which has been developing since 1990, has been considered as the foremost era in human history. There is no doubt that technology and the internet are the ultimate factors why this era is substantial. According to the report prepared with the title of "Digital in 2017 Global Overview", more than half of the world's population currently uses the internet, and a large part of this majority access the internet with their smartphones. Numerous sharings/posts are being made on the internet, a platform of which is very common in our daily life, but do not belong to anyone by nature, and cannot be controlled consistently. Even if some of the posts are removed somehow based on their illegality, it is practically not possible to prevent a post from accessing the internet all over the world. Considering the speed and the permanence of the internet, posts are becoming a part of the internet environment and are getting out of the participant's control. However, before 1990, it was necessary for data access to go to places where the data was located (e.g., the library). In other words, data access was subject to geographical restrictions. Nowadays, data access has become much easier compared to the period before 1990, and this has directly or indirectly affected many fundamental rights and freedoms such as the right to privacy, the right to protect and develop one's moral interests. This article deals with the “Right to be Forgotten” which has a close relationship with the above-mentioned rights and which has derived from removal of posts shared over the internet or from making access to such posts difficult.

Although there is no exact definition for the right to be forgotten, this right is defined, by considering various judicial decisions and international opinions, as "the individual's right to request that the information that has been lawfully and accurately disseminated in the pastis removed from access or not brought to the agenda depending on the passage of time" by the decision of the Personal Data Protection Board (“Board”) dated 23.06.2020 and numbered 2020/481 (“Decision”). We should point out that the right to be forgotten aims to ensure that one can lead a life with dignity. Contrary to human nature; never being able to remove from the internet through the mistakes that a person has made in the past or the unfortunate incidents/events that a person has experienced over the years causes people to live with their past constantly, which in turn negatively affects the development of such person. For this reason, the right to be forgotten, which we may describe as a person's "rebirth", may also be considered as a second chance given to a person to open a new page on the internet.

The most important feature of the right to be forgotten that distinguishes it from the other rights is that it covers not only unlawful data but also lawful data. In other words, when lawful data becomes unlawful in the course of time due to changing conditions, or even if such a situation does not occur, by comparison of the benefit of accessing the data by the public and the negative impact of data sharing on the person; such data that are no longer beneficial for the public to access may also be removed from the internet within the scope of the right to be forgotten. Besides, it should also be underlined that, although the right to be forgotten is limited only to the publications on the internet, it covers a field of application without being subject to any geographical/spatial limitation due to infiniteness nature of the internet.

The right to be forgotten was first determined in Costeja Gonzalez vs. Google Inc, Google Spain Decision in 2014 by the Court of Justice of the European Union (“CJEU”) and has made a tremendous impact both on our country and the world. In the said decision, Court stated that if the results of the searches made on the search engine are “invalid, incomplete, entirely irrelevant or became irrelevant subsequently”, the personal data uploaded to the internet by the search engines that are exceeding its purposes should be access denied, and that the right to privacy is above the public's right to demand information. In its decision, the Court also stated that continued accessibility of the personal data shall only be valid in cases where the public is in the best interest. As can be seen, if the public does not have the best interest in the concerning news, it shall be necessary to prevent access to the relevant personal data over the internet.

Another prominent factor that comes to the forefront with the said decision is that the related news are not completely removed from the internet within the scope of the right to be forgotten, but instead, access to the relevant news is prevented only by typing the name and surname of the person. For example, the newspaper article that appears by typing the name-surname into the search engine will no longer appear when the name-surname is typed by virtue of the right to be forgotten, however, if the relevant newspaper is reached in the internet, access to the concerned news will continue to be possible.

The protection of personal data, which includes the concept of the right to be forgotten, entered into Turkish Laws for the first time with the amendment made to our Constitution in 2010. Remarkably, the right to be forgotten was also mentioned in a decision made by the Supreme Court Assembly of Civil Chambers in 2015. [1] In the decision, a person who was a victim of sexual assault briefly explained how the sexual assault took place in the criminal proceedings, and the explanations were transferred exactly to the verdict. The information regarding the relevant proceedings of the judgement was included in a book without concealing the names of the parties by no means. The Supreme Court Assembly of Civil Chambers decided that plaintiff’s right to be forgotten and private life are violated since the name of the person who was the victim of an incident that took place 4 years ago was explicitly written in the book.  The Court also decided that it was not in the best interest of the public by referring to the Google Spain Decision. In addition, the importance of the “right to be forgotten” in Turkish Law has increased with the decision of the Constitutional Court in 2016, and the applicability of the “right to be forgotten” has increased following the effectiveness of the Law on the Protection of Personal Data numbered 6698 (“LPPD”) in 2016 and the Regulation on the Deletion, Destruction or Anonymization of Personal Data. The LPPD regulates the deletion, destruction, and anonymization of personal data in Article 7, the general principles of processing personal data in Article 4, and the rights of the data owner in Article 11. Accordingly, the Assembly has stated that the right to be forgotten is a supreme right that includes numerous notions within the scope of the regulations in the Constitution, LPPD, and Regulation, and the appropriate one from means such as deletion, anonymization, destruction, removal from content, cease of data processing activities should be implemented to ensure the right to be forgotten.

As a result of the above-stated Google Spain Decision and the regulations entered into force in our country, the Assembly, in its Decision, made a considerably important assessment regarding the implementation of the right to be forgotten. In these assessments; "The Criteria to be Considered in the Evaluation Regarding the Extraction of the Results of Searches with Name and Surname of People on Search Engines from the Index" has been defined. Some of those criteria are whether the person has an essential role in public life, whether the information obtained is up-to-date and correct, whether the subject in the search results is a child and, whether the information reached causes prejudice or any risk about the person. According to the answers to be given to the mentioned criteria, individuals shall first apply to the search engine to remove the search results from the content, and in case the search engine authorities do not respond or reject the application, individuals shall be able to file a complaint against the Personal Data Protection Board or to bring the matter directly to the courts.

As can be seen from the legal regulations and judicial decisions mentioned above, some criticisms have been made against the right to be forgotten, which has an important place in our country. The most remarkable of these criticisms is that how and to which extend should the right to be forgotten restricts the freedom of expression on the internet and the freedom of press; by considering the fine line between freedom of expression, freedom of press, and the right to be forgotten.

As a result, the "right to be forgotten" generated in consequence of the developing world which is utterly dependent on the internet, has brought many debates as it is considerably different from other rights. Given the regulations made on this issue in our country and the world, it would not be wrong to say that the importance of right to be forgotten will increase day by day and more discussions will be made on this right; by virtue of its close relationship with rights such as the right of privacy, freedom of expression, and freedom of press, right to protect and develop one’s moral and material interests.

 

ÖZKAN GÜRDEN BINGÖL ATTORNEY PARTNERSHIP

Att. at Law Güryay BİNGÖL, LL.M. – Att. at Law Sabri ERLAÇİN