Developments in technology have paved the way for recording, processing and disseminating all kinds of information about an individual in digital memory. This situation has brought about the need to protect personal data. Based on this need, the right to protection of personal data and the right to be forgotten, which are closely related to each other, have emerged.

There is no direct and agreed-upon definition of what personal data is, either in our national legislation or in international legislation. However, in the Personal Data Protection Law No. 6698, personal data is defined as any information regarding an identified or identifiable natural person. As can be seen from the definition, what will be considered personal data is not limited in the Law. It can be said that any information that enables the identification of a person, that can only be shared with third parties with the consent of the data owner, and that distinguishes the individual from other individuals, is personal data.

By sharing personal data in digital environments, these data can be recorded and used by third parties without the consent of the data owner. The right to be forgotten, which is a manifestation of the right to protection of personal data and which eliminates the privacy violation that occurs due to personal data used without the consent of the data owner, has come to the fore.

The right to be forgotten is defined as the irretrievable removal/deletion of any disturbing personal content belonging to individuals in the digital memory upon the individuals’ request.[1] In other words, the right to be forgotten is the freedom of the individual to use his or her personal data in the digital environment or to choose not to have it used by others. The person exercising the right to be forgotten ensures that the data in question is irretrievably removed, based on the right of disposition he has over his personal data.

Although there is no clear regulation regarding the right to be forgotten, either in our national legislation or in international legislation, the right to be forgotten is the subject of judicial decisions in the context of privacy of private life by both national decision-making authorities and international decision-making authorities. In this context, the decision of the Court of Justice of the European Union, which is the first jurisprudence regarding the right to be forgotten, is as follows:

The basis of the case, which forms the basis for the decision of the Court of Justice of the European Union regarding the right to be forgotten, is that when an internet user enters the name of a lawyer named “Mr Costeja González” in the search engine Google, two articles of a daily newspaper called “La Vanguardia” dated 19 January and 9 March 1998 appear. Costeja Gonzalez’s name is publicly included on these linked pages, and information about the seizure made against her due to her social security debts is included.

The Court of Justice of the European Union stated that when evaluating removal requests from search engines, not only the economic interests of the search engine operator, but also the legitimate interests of internet users who want to access the information requested to be removed and who may want to do so in the future should be taken into account.

The Court stated that in the case at issue and similar requests, a fair balance must be maintained between the legitimate interests of other internet users and the data subject’s rights under Articles 7 and 8 of the Charter of Fundamental Rights. While establishing the balance in the face of the fact that the rights of the data subject may be superior to the rights of other internet users, he emphasized that in each concrete case, the nature of the information in dispute, the value of this information for the data subject and the interests of other internet users in accessing the information in question should be evaluated. It has been mentioned that the data subject’s position in society may increase the degree of interest of other persons in obtaining information.

The Court stated that the data subject’s request may arise not only from the fact that the data is inaccurate, but also, in particular, from “the data being incomplete, irrelevant or excessive in relation to the purpose of processing, not being kept up to date, and being kept in the system for longer than necessary, unless they are required to be kept for historical, statistical or scientific purposes.” As a result of all these evaluations, the Court decided that individuals may request search engines to remove links containing their personal data from search results under the above-mentioned conditions.

Considering that the information that constitutes the subject of Costeja Gonzalez’s case relates to his private life and that the first publication of the data was made in 1998, it concluded that he had a right to request the removal/deletion of the links in question.

In the Court’s decision, it is clearly seen that the right to be forgotten is not absolute, and that issues such as the individual’s right to protection of personal data, the society’s right to receive information, the individual’s place in society, freedom of expression and the right to privacy must be evaluated separately for each case.

In addition, the Court decided that in cases where there are no special reasons proving a superior interest in the public accessing the information by displaying the information containing the individual’s personal data in the results list of the search engine, the data subject may request that such a link not be provided or that the links be removed. Accordingly, the Court concluded that Costeja Gonzalez’s request was appropriate and justified.[2]

It should be noted that since the Court of Justice of the European Union used the term “search engines” when referring to responsibility in its decision, this decision is also binding on other search engines. In addition, although the International Court of Justice stated that the content removal decision should be applied to the whole world, Google implements content removal requests only within the borders of the European Union and for European Union citizens.

Based on the aforementioned decision of the Court of Justice of the European Union;

• If personal data is not processed lawfully even though it is based on a legitimate purpose and consent

• If there is no clear, specific and legitimate purpose in collecting personal data

• If the personal data held is not accurate and up-to-date

• If the time required for collecting and processing personal data has been exceeded

The personal data owner has a legal interest to request the right to be forgotten based on one or more of these situations.

If we need to evaluate the right to be forgotten and the decision of the Court for Turkey, this decision regarding the right to be forgotten is not binding for Turkey, since the Court of Justice of the European Union holds the member states of the European Union responsible in its decision. Considering that the right to be forgotten is not clearly regulated in our national legislation, it is necessary to make a separate evaluation regarding the right to be forgotten for Turkey.

Personal Data Protection Law No. 6698 regulates the deletion, destruction or anonymization of personal data, and as has been repeatedly emphasized, there is no clear regulation regarding the right to be forgotten. However, a decision made by the General Assembly of the Supreme Court of Appeals regarding the right to be forgotten paved the way for the right to be forgotten in Turkish Law. The decision of the General Assembly of the Supreme Court of Appeals with Case No. 2014/56 and Decision No. 2015/1679 is as follows:[3]

When the concrete incident is viewed in this context; The plaintiff is the victim of the crime of sexual assault several times by abusing the influence provided by his public office or service relationship. At the date of the action in 2006, the plaintiff was single and the action he was subjected to had an impact on his future. At the end of the trial, the defendant, who was a public official, was sentenced. As a result of the review upon the appeal request, the verdict was approved in 2009. The victim-plaintiff clearly explained how the sexual assault occurred both during the preparation and the trial, and these explanations were naturally included in the text of the decision. The decision was included in the book published in April 2010, without the names of the victim and the defendant.

The General Assembly of the Supreme Court of Appeals justified its decision on the case based on the European Union’s Directive No. 95/46/EC on the Protection of Individuals with Regard to the Processing and Free Flow of Their Personal Data and the decision of the Court of Justice of the European Union on the aforementioned right to be forgotten. The decision in question is as follows:

The basis of the problem before us is the right to be forgotten and the resulting protection of personal data and personality rights and the determination of the limits of the freedom of science and art. The issue that needs to be considered in solving the problem is to establish a fair balance between freedom of science and art and the fundamental rights of the individual.

As for the right to be forgotten; The right to be forgotten and the related issues of storing or retaining personal data to the extent necessary and for the shortest period of time actually constitute the framework of the right to protection of personal data. The basis of both rights is to ensure that the individual can freely dispose of his personal data, make plans for the future without being hindered by the past, and prevent the use of personal data against the individual. The right to be forgotten prevents the future of a person from being negatively affected due to an event in his past that is caused by his own will or by a third party.

The right to be forgotten; Unless there is a superior public interest, it can be expressed as the right to request that negative events in the past in the digital memory be forgotten after a while, and to request the deletion and dissemination of personal data that one does not want others to know.

On the one hand, this right provides the person with the right to “control his/her past” and “to request that certain issues be erased from his/her history and not to be remembered”, and on the other hand, it imposes an obligation on the addressees to take precautions to prevent third parties from using some information about the person or to prevent third parties from remembering it. This right; It is accepted that individuals have the right to request the removal of information about their past sentences or information and photographs that may cause negative comments about them, as well as forcing third parties to delete content about them such as photographs and blogs.

It is stated that the “right to privacy”, protected under the right to respect for private life in Article 8 of the European Convention on Human Rights (ECHR), also includes the legal interests of the individual to control information about himself. Because the individual has a legal interest in ensuring that any information belonging to him or her is not disclosed or disseminated without his or her consent, and that this information cannot be accessed by others, in short, that his or her personal data remains private. By providing the person with the right to be forgotten, the privacy of his/her private life will be protected.

It should be stated immediately that; The plaintiff’s name appearing in a book without his consent constitutes personal data. When evaluated in this context; If the name of the person who was the victim of an incident that took place 4 years ago is written clearly and included in the book, it should be accepted that the right to be forgotten and, as a result, the privacy of the plaintiff’s private life are violated. As explained by the Court of Justice of the European Union in the “Google Decision”, personal data should not be clearly included in the decision taken on a scientific work, since there are no special reasons that demonstrate a superior public interest, such as the important role that the relevant data plays in public life and the intense interest of the public in the relevant data. .

It should also be stated that; When we look at the definitions of the right to be forgotten, even though it is designed for digital data, considering the characteristics of this right and the relationship between this right and human rights; It is clear that it should be accepted not only for personal data in the digital environment, but also for personal data kept in a place where the public can easily access it.

As can be clearly understood from the decision, the General Assembly of the Supreme Court of Appeals expands the scope of the right to be forgotten. This is an issue that should be given importance. While the Court of Justice of the European Union addresses the right to be forgotten only in terms of digital data, the General Assembly of the Supreme Court of Appeals expands the scope and accepts the right to be forgotten in terms of digital data as well as data that the public has the opportunity to easily access. Thus, the right to be forgotten can be asserted not only in terms of digital data but also in terms of all kinds of personal data that the public can easily access.

REFERENCE

Gülener, S., “Dijital Hafızadan Silinmeyi İstemek: Temel Bir İnsan Hakkı Olarak ‘Unutulma

Hakkı'”, Türkiye Barolar Birliği Dergisi, Y. 2012, Sa. 102, p. 226.

ELMALICA, H. (2016). Bilişim çağının ortaya çıkardığı temel bir insan hakkı olarak unutulma hakkı. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 65(4), 1603-1636.

Decision of the General Assembly of the Supreme Court of Appeals, dated 17.06.2015, Merits No 2014/56 and Decision number 2015/1679.

Personal Data Protection Law No. 6698 and Related Legislation

[1] Gülener, S., “Dijital Hafızadan Silinmeyi İstemek: Temel Bir İnsan Hakkı Olarak ‘Unutulma

Hakkı'”, Türkiye Barolar Birliği Dergisi, Y. 2012, Sa. 102, s. 226.

[2] ELMALICA, H. (2016). Bilişim çağının ortaya çıkardığı temel bir insan hakkı olarak unutulma hakkı. Ankara Üniversitesi Hukuk Fakültesi Dergisi, 65(4), 1603-1636.

[3] Decision of the General Assembly of the Supreme Court of Appeals, dated 17.06.2015, Merits No 2014/56 and Decision number 2015/1679.