In the legal order, persons are divided into two as real persons and legal persons. Each individual gains personality and has legal capacity provided that the person is born full and alive. Legal capacity is the ability of a person to hold and exercise rights and duties. Pursuant to the Turkish Civil Code No. 4721, Article 8, "Every human being has the capacity to have rights. According to this, all human beings are equal in being capable of rights and obligations within the boundaries of the legal order. " Therefore, as a legal term, person means the entity that can have rights. Based on this, the concept of personal rights has emerged. Personal rights, on the other hand, are absolute rights that aim to protect the basic values that individuals have and are protected at national and international level as they are fundamental human rights. Therefore, they are inalienable and indefeasible rights.
The Constitution is the first thing that we can think of when speaking of the rights on all of the elements that enable the individual to develop his dignity and personality freely in the society. The basic text that guarantees the fundamental rights and freedoms and personal rights of individuals, such as the right to life with Article 17, the right to personal immunity, the privacy of private life with Article 20, the immunity of housing by Article 21, the freedom of communication with Article 22, and the right to health with Article 56, is the Turkish Constitution. As a matter of fact, Article 24 of the Turkish Civil Code states, "A person whose personal right is attacked unlawfully can ask the judge to be protected against those who attack him. Unless the attack is justified by the consent of the person whose personal right has been damaged or superior private/public benefit or the exercise of the authority granted by the law, every attack on personal rights is against the law. "Thus, it clearly reveals that personal rights are protected by the legal order.
In today's world where technology has become the focal point of our lives and business and transactions are carried out on the internet, it is necessary to draw attention to the interventions made over the internet to personal rights. Because, in the internet environment where the dissemination of information is so fast, it becomes difficult to detect and prevent the damages caused to personal rights either by written or visual means. Although freedom of expression, freedom of communication and freedom of the press are among the fundamental rights guaranteed by the Constitution, at this point, the fundamental rights conflict with each other. Because the limits of the rights end at the point where it interferes with other rights. The main thing is, while using these fundamental rights, the personal rights of individuals should not be harmed. The concept that needs to be dwelled on in this conflict is the right to be forgotten. Right to be forgotten is a right regarding whether an individual can request the deletion, removal, and prevention of access to certain data, information, digital traces, connections that have been created and contained in the digital platform and memory through technology and internet. It is defined as the removal / deletion of all kinds of disturbing personal content of individuals in the digital memory in a way that cannot be recovered again, upon the request of the individuals.
As the use of the internet has become widespread, transferring personal data to digital media, storing and sharing in this area, has become an important part of daily life. Due to the nature of personal data, the discretion regarding the storage, use and sharing of these data should belong to the data owner. However, this data can be copied, stored and shared on digital platforms without the permission of the owner. As a result, the violation of privacy of private life and communications has become easier. In order to prevent this, the right to be forgotten, which gives individuals the right to demand some digital data available on the internet to be disconnected from them, has gained importance. However, it should be noted that the right to be forgotten should not be limited only to digital data.
The General Assembly of the Supreme Court of Appeals stated that, "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 that is easily accessible by the public." in its 2014 / 4-56 E., 2015/1679 K. Numbered decision dated 17.06.2015.
The international recognition of the right to be forgotten was achieved in 2014 with the Google-Spain decision of the Court of Justice of the European Union (CJEU). With this decision, applications referring to the search engines, within the scope of the right to be forgotten, gained legitimacy. The current regulation on digital data in our country has been brought by the Law No. 5651 dated 04.05.2007 on Regulating Publications on the Internet and Combating Crimes Committed Through These Publications. However, there is no clear regulation regarding the right to be forgotten in the law. The right to be forgotten in Turkish Law has mostly developed within the framework of the Court of Cassation's case law.
The General Assembly of the Supreme Court of Appeals, directly referred to the decision of the Court of Justice of the European Union by using the term "right to be forgotten" in its decision dated 17.6.2015 and defined the term as, "The right to request the past negative events in the digital memory to be forgotten after a while and the deletion and prevention of the dissemination of personal data that a person does not want others to know, as long as there is no superior public interest." The right to request the deletion and prevention of the dissemination of personal data that a person does not want others to know". This right, which is one of the new generation rights, can also be accepted as a personal right.
Accordingly, the limits of the right to be forgotten are parallel to the limits drawn on privacy of private life and protection of personal data, which are the foundation of the right to be forgotten. It may be possible to limit the right to be forgotten in terms of public safety, protection of public order, prevention of crime, and public benefit. Likewise, it should not be forgotten that while the right to be forgotten and personal rights are protected, rights such as freedom of expression, freedom of the press and the right to information are also restricted. In our opinion, the criteria for restricting fundamental rights and freedoms should be taken into account and the right should be exercised in the widest sense.
It would be appropriate to say that the right to be forgotten, the scope of which cannot be drawn with sharp boundaries due to the fact that it is a new generation right and the speed of developments in the digital environment, has a very important place in today's world where daily life is transferred to the internet. We believe that the use of the "right to be forgotten", which is so closely related to the protection of fundamental rights and freedoms and personal data, should be widespread and facilitated.
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