TMT and Intellectual Property

Right to be Forgotten: Is It Possible to Forget Your Past?

Recognizing the Privacy of an Individual

The right to be forgotten has joined the personal data discussions by the decision of the European Court of Justice on 13 May 2014 in the lawsuit between Google, the Spanish Data Protection Authority, and a Spanish citizen.

The subject of the relevant decision is an application of a Spanish lawyer, whose real estates were distrained due to his debts, to the Spanish Data Protection Authority to remove or anonymize the advertisements that transferred to the website of the relevant newspaper after the twenty-year passed as of the public auction advertisements of his real estates. Since one of the first results was a link to these advertisements when his name was searched on Google, the Spanish lawyer  requested the removal of the link from the search results, claiming the right to be forgotten under Spanish law.

The Court of Justice decreed that search engines are subject to the EU Data Protection Directive and are considered as Data Controllers in terms of the data they process.

  • The operation of search engines is defined as finding, automatically indexing, temporarily storing information published or contained on the internet by third parties, and finally, making this information available for the internet users according to a certain ranking preference.
  • As a result of the adjudgment; the Court of Justice has ruled that links to irrelevant, invalid, or noncurrent personal data on the internet must be removed from search engines upon a request of relevant individuals. The elements as such became the source of the principles that stipulate to be adhered to in the processing of personal data, and as a result, the relevant decision defined the right to be forgotten in the internet environment

As a result of the relevant decision: Google has paved the way for internet users to apply for the removal of their content and to evaluate such applications through the form published on its site.

Unfortunately, Turkey is not among the countries where the applications are accepted via the relevant form. For this reason, in case of the affirmative or satisfactory answer is not received after the application is made to the data controller per the Law on Protection of Personal Data No.6698 for the removal, denying access, or anonymization of personal data within the internet network, requests for removal of the content containing personal data are examined by the Personal Data Protection Authority.

At this point, it would be important to clarify that the data subject to the right to be forgotten is the information disclosed to the public following the law. The unlawfully obtained information shall be removed from the internet without being subject to the right to be forgotten.

What is the Corresponding of the Right to be Forgotten in National Law?

Even though the right to be forgotten is not explicitly included in our legislation, the right to privacy has been subjected to judicial decisions due to the need to follow the international conjuncture.

The right to be forgotten in the decision of the Assembly Of Civil Chambers Of The Supreme Court, dated 17.06.2015 and numbered E.2014 / 4-56, K.2015 / 1679 is explained as follows:

“…As for the right to be forgotten; The right to be forgotten and the storage or retention of personal data to the extent necessary and for the shortest period of time actually constitute the framework of the right to protect personal data. The basis of both rights is to ensure that the individual can freely save on his / her personal data, plan for the future without getting stuck in the past, and prevent the use of personal data against the person. With the right to be forgotten, it is ensured that the future of the person is prevented from being negatively affected by his/her own will or an event caused by a third party. The ability of the individual to shape his future by getting rid of the negative effects he/she has experienced in his past is for the benefit of the individual, as well as the effect of the quality of the society on the increase of the level of development.

Right to be forgotten; Unless there is a superior public interest, it can be expressed as the right to ask for the negative events in the digital memory to be forgotten after a while, to be deleted and prevent the dissemination of personal data that others do not want to know…”

Besides, with the decision of the Personal Data Protection Authority dated 23.06.2020 and numbered 2020/481, notifying the search engine operator companies of the procedures and principles in the decision regarding the requests for removal of the results of searches that are made via the name and surname of the persons from the search engines and it has been decided to take the necessary actions to ensure that the communication channels can be used by Turkish citizens  to implement the right to be forgotten on the websites by the relevant persons.

Another point to be considered is that, for personal data to be deleted from the index in search engines, it must have certain qualifications stipulated by the Personal Data Protection Authority. These criteria are as follow:

  1. Whether it concerns the public interest,
  2. Whether the data belongs to a child,
  3. Whether the content of the information is correct,
  4. Whether the information deemed an insult or threat to the data subject,
  5. Whether it is up to date,
  6. Whether there is a risk for the relevant person
  7. Whether they can be evaluated within the scope of journalism activity or not, they can be summarized as issues that directly concern the public interest.

Finally, with the development of technology, it is clear that the information, documents, and photographs that can be accessed via internet use are open and accessible to everyone, and the right to be forgotten is a right in need of protection from the dangers this access may violate the material and moral integrity of the persons and, in this respect, it imposes certain obligations on the Government and Data Controllers. In the light of the above-mentioned criteria, it is understood that the applications made with the request for the right to be forgotten should be evaluated meticulously in terms of every concrete event.


Can Çelik

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