According to Mayer-Schönberger, "For humans, to forget and to be forgotten is the rule; whereas to remember and to be remembered is the exception." However, with the rise of the internet and the popularity of digital memory, this balance between forgetting and remembering has been reversed. It has become the exception to forget.
The internet plays an indisputable role in our lives today. According to data from the Turkish Statistical Institute, the percentage of internet users aged 16-74 was 61.2% in 2016, and it gradually increased throughout the years; to 75.3% in 2019, 82.6% in 2021, and 85% in 2022.1
Web 2.02technology has made the internet interactive and dynamic, allowing users to be content producers as well. However, this situation has led to some downsides, including the frequent violation of individuals' rights on the internet.
The fact that information on the internet can be easily accessed for years - if not deleted, perhaps even forever- conflicted with some personal values, such as the right to privacy and the protection of reputation. As a result, the right to be forgotten in the digital environment was recently recognized as a new human right by the European Court of Justice ("ECJ").
The Right to Be Forgotten
The right to be forgotten in the digital environment is a human right related to personal data and personality rights that was recently recognized by the ECJ with its landmark "Google Decision", explained in detail below.
The right to be forgotten refers to the right of an individual to request their personal data not to be linked to their name on the search engine results. It is in the nature of human beings to forget. The internet's digital memory, on the other hand, by making it nearly impossible to forget, contradicts human nature.
Consider an individual who committed a crime in the past, during a time when the internet and digital memory were not prevalent. In such a case, years later, if the same individual applies for a job or a rental property, their potential employer or landlord would likely be unaware of their past criminal record, and it would not hinder their prospects for the future. However, in the present day, the same individual's criminal history can be easily discovered with just a brief Google search.
Data on the internet can be accessed by approximately five billion internet users without any space or time constraints.3 On the other hand, this ability to access any data without any constraints with just one "click" does not always lead to positive results. Easy access to information may result in public knowledge of information some individuals may not want people to have such easy access to. Individuals may suffer from this information becoming general knowledge.
The ECJ4 decision in the Google Spain case sets a precedent for the right to be forgotten. In this case, a lawyer named Mr. Costeja Gonzalez found a news article in the newspaper "La Vanguardia" reporting that his house had been sold at auction due to his insolvency to pay his social security debt when he searched for his name on Google. Gonzalez requested that the newspaper remove the article or hide the relevant links, arguing that the incident took place years ago, and there was no more public interest in the news.
The Spanish Data Protection Agency ("Agency") rejected the application against the newspaper, stating that the newspaper had published the news pursuant to the request of the Ministry of Labor and Social Security. Yet, the Agency ruled Google to remove the link, stating that Google is a search engine and a data processor, and it shall be responsible.
Upon Google's appeal, the case was brought before the Supreme Court of Spain, where the Supreme Court requested ECJ's opinion in this regard. Google argued that the right to be forgotten would deprive the public of its right to information. Still, the ECJ ruled that the protection of the right to privacy prevails public's right to information and the economic interests of the search engine.
The only exemption stated in the decision is that this right to be forgotten may not apply if there is an overriding public interest in learning about the news. Further, it is stated in the decision that there is no such public interest in the present case. Thus, it is emphasized that the news in question was outdated; and it is mandatory to remove links from search engines upon the request of individuals, where the link contains outdated personal data/news.
As a result, the decision states that even when third parties have legally processed personal data if personal data is invalid, incomplete, completely irrelevant, or subsequently became irrelevant, the purpose of processing has been exceeded. Contents must be removed from search results by search engines.5
The right to be forgotten can be defined as the right to request the removal of content on the internet or the restriction of its access. In other words, what distinguishes the right to be forgotten from the fundamental right to demand the protection of personal rights is that there is a legal and legitimate reason for the presence of the content on the internet to which the right to be forgotten is directed.6On the other hand, the right to demand the content on the internet not to be listed on search engines (delisting or the right to de-referencing) is frequently used together with the right to be forgotten. However, delisting does not mean deletion or elimination of the data in question, it merely removes the reference to the data and prevents access to the concerned data.7The right to be forgotten was an exceptional right that initially emerged as a right to restrict access to certain personal data in all kinds of digital media, especially in the internet environment, but over time it has evolved into a general right.
The Right to be Forgotten in the View of Turkey
Though the right to be forgotten was discussed in various countries (Argentina, Germany, etc.)8before, it was recognized as a "human right in the digital environment" with the ECJ decision. Following the aforementioned ECJ judgement, the right to be forgotten has also been accepted in Türkiye through case law.
According to the Constitutional Court, in order for internet news not to be listed on search engines within the scope of the right to be forgotten, issues such as the content of the publication, the duration of its publication, outdatedness, inability to be accepted as historical data, its contribution to the public interest (the value of the news in public terms, the quality of the news shedding light on the future), whether the person subject to the news is a politician or a celebrity, the subject of the news or article, whether the news item contains factual facts or a value judgement in this context, the public's interest in the relevant data should be examined in each concrete case. In addition, when the past decisions of the Constitutional Court on blocking access related to the right to be forgotten are examined, it is observed that the Constitutional Court has considered some criteria such as the "prima facie violation" assessment and the balance between freedom of expression and personal rights, which it determined in Ali Kidik (B. No: 2014/5552, 26.10.2017, § 63) decision and the criminal judgeships of peace obliged to apply.9
According to the Constitutional Court, for internet news not to be listed on search engines within the scope of the right to be forgotten, issues such as the content of the publication, the duration of its publication, outdatedness, its contribution to the public interest (the value of the news in public terms, whether the news shed light on the future), whether the person subject to the news is a politician or a celebrity, the subject of the news or article, whether the news item contains factual facts or a value judgment in this context, the public's interest in the relevant data should be examined in each concrete case. In addition, when the Constitutional Court decisions on access restriction related to the right to be forgotten are reviewed, it is seen in Ali Kidik decision (B. No: 2014/5552, 26.10.2017, § 63) that the Constitutional Court has developed some criteria such as the "prima facie violation" assessment and the balance test between freedom of expression and personal rights. The Magistrate Courts are also bound by these criteria.[1]
Although the right to be forgotten is an issue that falls within the scope of the Protection of Personal Data Law No. 6698 ("PPDL"), the right was accepted under Turkish Law before PPDL entered into force in 2016.
As a matter of fact, in the case subject to the decision of the Court of Cassation General Assembly of Civil Chambers ("General Assembly") dated 17.06.2015 and numbered 2014/4-56 E. and 2015/1679 K., the full name of a plaintiff- who was a victim of sexual harassment- was written in a criminal law book and the plaintiff claimed that she has suffered moral damage since the incident she experienced was brought up again with her name and filed a lawsuit for moral damages. The following evaluation constitutes a precedent:
"In case the name of a victim of an incident that took place four years ago is explicitly written and included in the book, it should be accepted that the right to be forgotten and the privacy of the plaintiff's private life is violated. As explained by the ECJ in the Google Decision, personal data should not be explicitly indicated in scientific work, unless there is an exceptional reason that overrides public interest, such as the substantial role the personal data plays in public life or the intense public interest in the personal data."
It should be noted that although the ECJ accepted the right to be forgotten for the data in the digital environment, the General Assembly interpreted this right widely and decided that the concerned right should also be applied to the data processed in the physical environment. The General Assembly stated that: "Although the right to be forgotten is regulated for digital data, considering the characteristics of this right and its relationship with human rights, it is clear that it shall be accepted not only for personal data in the digital environment but also for personal data kept where the public has easy access."
In addition, the decision of the General Assembly of Criminal Chambers of the Court of Cassation numbered E:2016/18-1169, K:2018/490 emphasizes the importance and the necessity of the right to be forgotten: "As emphasized in the Constitutional Court's decision dated 03.03.2016 and numbered 2013/5653, before the widespread use of the internet, any records kept on people's past lives were lost over time due to the difficulties in accessing these records and allowed people to continue their lives without being affected by their previous mistakes. However, the internet environment provides easy access even to archived information, which can only be ascertained by the great efforts of researchers or enthusiasts. Further, it does not let to forget news or unwanted matters. The effective use of the internet by the press has distorted the balance between the freedom of expression and the press and the honor and reputation of individuals in favor of the former. Where they should be protected equally. It may be possible to prevent the deterioration of this balance by recognizing the individuals' right to be forgotten, which is not regulated explicitly in our Constitution and laws."
The right to be forgotten is closely related to how much we want to remember and how much we want to be remembered. While remembering is a reflection of our freedom of information, not being remembered is related to our dignity and honor. The balance between these two aspects will determine the scope of the right to be forgotten. As a result, the right to be forgotten, which is a right related to the self-determination of the fate of personal data, can be considered as "a right to start with a clean slate" by leaving behind an incident that harms the individual's dignity and honor.10
Footnotes
2 To briefly talk about the Web 1.0, Web 2.0, and Web 3.0 periods; Web 1.0 period refers to the period when the internet was presented unilaterally for users to read, but the users themselves could not produce any content; the Web 2.0 period refers to the period when users now participate interactively in the internet environment by producing content through channels such as Facebook, Twitter, Instagram, etc., and Web 3.0 refers to the period when internet control is out of human hands with technologies such as artificial intelligence.
3 Number of internet users worldwide 2022 | Statista
4 Court of Justice of the European Union, C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González decision
5 Çirak, Ezgi. The Right to be Forgotten Against Being Forever Remembered in the Digital Age, Journal of Criminal Law, Vol.13, No. 36, 2018
6 Mehmet Bedii Kaya, "The Right to be Forgotten", for access to the relevant source on the internet see: https://www.mbkaya.com/hukuk/unutulmahakki.pdf
7 Zafer Kahraman, "The Right to be Forgotten" (Kemal Senocak (Ed.), Various Aspects of Personal Data Protection Law), Yetkin Publications, Ankara, 2022, ("Kahraman"), p. 163
8 Yavuz, Can. A New Human Right in the Information Age, Istanbul Bar Association Journal, Vol. 89, No: 2015/2
9 Regarding the online access to the Constitutional Court's judgement on Ali Kidik Case (B. No: 2014/5552, 26.10.2017, § 63), seehttps://kararlarbilgibankasi.anayasa.gov.tr/BB/2014/5552 (Accessed: 19.08.2021).
10 Kahraman, op. cit., p. 162.
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