What is the Right to be Forgotten?

The Right to Reorganize One's Past or Open a New Page in the Future

1. General Considerations on the Right to be Forgotten and Its Historical Development 

Technological inventions and developments in the internet environment have facilitated access to information and data today, and with the intensive use of the internet in our lives, the need for legal norms to regulate the behavior of individuals on the internet has emerged. This is because the internet has been used for both good and bad purposes, sometimes for propaganda and sometimes as a tool for committing crimes.  

In addition to the many positive aspects that the internet environment has added to our lives, various negative effects have also emerged on a social and individual basis. The impact of the internet on our lives has been so great that the internet has not only created its own jargon, but has also created a different type of addiction called internet addiction, which is considered a mental disorder. 

On the other hand, the internet environment has become an environment where everyone's personal data, including children, adolescents and adults, can be easily shared by themselves or others, recorded for a long time, changed, subjected to all kinds of processing and easily accessed through search engines. Personal data that are shared on the internet and that harm the reputation of the person concerned remain on the internet for a long time without the consent of the person concerned, are sometimes used against the person, prevent the person from making plans for the future, negatively affect his/her private and business life, and deprive the person of his/her right to self-development and self-realization. 

In such a situation, people who want to wipe the slate clean have started to demand that their personal data be removed from the internet and that access to such data be blocked. The first dispute involving a request for the deletion of personal data arose in Spain.  Mario Costeja Gonzalez, a Spanish citizen, typed his name into the Google search engine and saw that the newspaper La Vanguardia published information on two different pages in 1998 about his being forced to sell his property due to his inability to pay his social security debts, and he applied to the Spanish Data Protection authority in 2010, stating that the procedure concerning him had been concluded years ago and that these news were now completely irrelevant and requested that they be removed. The Spanish Data Protection authority ruled that publication in the newspaper was mandatory under national legislation, but that it should be removed from the Google search engine. Google appealed to the Spanish Supreme National Court and the Supreme Court referred the case to the CJEU, the Court of Justice of the European Union. In its 2014 judgment, the CJEU ruled that personal data should be deleted if the results of the search on the search engine are "invalid, incomplete, completely irrelevant or subsequently rendered irrelevant".  

In recent days, requests regarding the right to be forgotten have been directed to the courts in our country and have been the subject of judicial decisions and precedent-setting decisions have emerged. For example, a 2014 request to block access to a news article published in a national newspaper in 1999, in which a person was punished with a judicial fine for using drugs, was rejected by the local court and the matter was brought before the Constitutional Court.  The Constitutional Court, taking into account that the news was real and not fabricated, ruled that the fact that the news published in 1999 was still in the archive and accessible in 2014 was a violation of the right to protection of honor and reputation guaranteed under the first paragraph of Article 17 of the Constitution. In another similar case, the Supreme Court of Appeals ruled that the publication of a criminal court's decision regarding a victim who was verbally and physically harassed at the workplace as a sample decision in a law book four years after the incident and the mention of the victim's name in the decision was a violation of the right to privacy.  Examples can be multiplied. 

2. Definition of the Right to be Forgotten  

Nowadays, the fact that some personal data regarding the past of individuals are constantly and easily accessible, especially in the digital environment, may cause the person concerned to be condemned to his/her recorded past.  

When an individual, about whom news about drug addiction was published on a news website years ago, gets rid of drugs after treatment and redefines himself/herself, he/she wants to get rid of the personal data about his/her drug addiction, which harms him/her and undermines his/her reputation. He/she wants to start a new life with a clean slate and a new and different identity. 

The right to be forgotten is a right that allows individuals who wish to get rid of their past to do so. Thanks to this right, the individual finds the opportunity to realize himself/herself by getting rid of his/her past. The ability of the individual to shape his/her future by getting rid of the negative effects of his/her past also increases the quality and level of development of the society. 

From this point of view, the "right to be forgotten" can be defined as a right that gives the individual who wants to determine his/her own future and identity and who is in constant development the right to improve himself/herself and redefine his/her identity by getting rid of his/her past (1).  Thanks to this right, the person will be able to plan for the future without being hindered by the past, and the use of personal data against the person will be prevented. By exercising this right, individuals will be able to request that a bad event in the past be erased from the memory of the society, get rid of the effects of an unfortunate event in the past, in other words, they will be able to open a new page in their lives. 

The Court of Cassation defines the right to be forgotten as "the right to request that the negative events of the past in the digital memory be forgotten after a while, unless there is a superior public interest, and to request the deletion and prevention of the dissemination of personal data that others cannot be asked to know" or "the right to access personal data about people, in the press, written, audio/visual media or internet media, in short, on mass media; the right to be forgotten is defined as "the legally protected interest in preventing the personal data about people's past, information, news or comments that have been shared about people in the past through lawful means and grounds (even if they are presented in a complete and accurate manner) from being accessible at any time by anyone who wishes".  

3. Subject Matter of the Right to be Forgotten 

As can be understood from the example given above, the subject of the right to be forgotten is the personal data related to the person's past. When a person wants to get rid of some data about his/her past, the right to be forgotten will give this opportunity to the person. Today, personal data is defined as "any information relating to an identified or identifiable natural person". The data that a certain person has used drugs in the past or that he/she has been punished for a crime committed in the past is the kind of personal data that today undermines the reputation of the person in question and that the relevant person who wants to redefine himself/herself would like to get rid of.  

To define personal data in a broad sense with examples; in addition to data such as the person's name, address, telephone, picture, voice, etc., data on the person's lifestyle, religious beliefs, sexual preferences, ethnic origin, criminal history, political tendencies and personal private activities, economic and financial life, data on the person's assets, shares and accounts, debts, credit cards, data on health information and diseases, biometric data, data on e-mail and social media accounts in the field of informatics, political personal data including political preferences of individuals. However, it does not seem possible to count and express all personal data. 

4. Qualifications of Personal Data Subject to the Right to be Forgotten 

The personal data that is the subject of the right to be forgotten must be personal data that has been recorded, shared and processed in a digital environment in the past, must be accurate in terms of data content and must have been processed in accordance with the law. Data that constitutes a criminal offense, such as defamatory data or data that violates the right to privacy (intimate photographs or video footage) will not constitute the subject of the right to be forgotten. The legal remedies to be applied in case of processing such data differ.  

In order to assert the right to be forgotten, sufficient time must have passed since the sharing or processing activity, and the public interest such as freedom of the press, right to information, etc. must have disappeared in the sharing of personal data. There is no valid criterion for determining the time interval; it is determined individually according to the characteristics of each case. As a result of the sharing or processing of personal data, the data must lose its currency or importance after a certain period of time. 

5. Value Protected by the Right to be Forgotten 

Considering the basis of the right to be forgotten and the value it protects, it is seen that the right is based on rights such as the right to privacy, the right to personality, and the right to develop one's material and spiritual existence. The right to be forgotten enables the creation of conditions conducive to self-realization.  An individual whose political identity or lifestyle has changed and who wants to redesign himself/herself with a different identity can benefit from this right, and with this right, he/she has the opportunity to express that he/she is free from his/her past mistakes and regain his/her reputation. 

6. Protection of the Right to be Forgotten Outside the Digital Environment 

Personal data may have been processed in the past in printed media such as newspapers and magazines, archives and official documents in analog media or in digital media. In fact, sometimes personal data recorded in the analog period are scanned and transferred to digital and computer media, as in the transfer of newspaper archives to computer media, and are easily shared today. In the analog period before the use of computers and the internet, especially after the execution of the sentences of the ex-convicts, the constant connection with the crime they committed prevented individuals who wanted to determine their own future and improve themselves, and caused individuals to be stigmatized and condemned to their past.  

Nowadays, the fact that personal data belonging to a person's past can be easily stored in the computer environment and easily shared via search engines and social networks on the internet allows the events that cast a shadow on the dignity and reputation of the individual to be constantly kept on the agenda.  Due to the fact that many personal data are constantly stored and easily accessible through the use of computers and the internet in the digital era, people who want to get rid of the bad effects of the past apply to content providers or hosting providers on the website or data controllers such as Google, which manages search engines, and request that access to their personal data be blocked or their data be removed or deleted. 

7. Criteria for the Right to be Forgotten 

The conditions under which the requests regarding the right to be forgotten will be fulfilled and the criteria to be taken into account in applications to the courts or the Personal Data Protection Authority in case of non-fulfillment of the requests become important. The right to be forgotten is not absolute, but an exceptional right, which means that it should be evaluated and decided according to the concrete case (2). Requests for the removal, deletion and blocking of access to personal data sometimes conflict with rights and freedoms such as freedom of expression, freedom of the press and the right to information, and require a detailed and accurate assessment, taking into account the values protected by these rights. In such cases, competent authorities and courts conduct a separate examination in each concrete case. Criteria such as when the personal data was shared, the social status of the person, the public's right to information, freedom of expression, freedom of the press, whether there is a public interest in sharing the data, the balance between personal interest and public interest, etc. are taken into account. 

The right to be forgotten is a right that increases its importance day by day in the digital age and is a right that allows the protection of private life regulated in Article 20 of our Constitution and the protection and development of the material and spiritual existence of the person regulated in Article 17. Thanks to this right, it is possible for a person to open a clean slate, redesign himself/herself and reach an identity that allows him/her to take actions in the future in a manner befitting a human being. In our article, the nature and scope of the right has been studied, and the legal remedies that enable the right to be forgotten will be shared in a separate article. 

Footnotes

(1) Sözüer, EREN , The Right to be Forgotten, Oniki Levha , 2017, Istanbul p.11-12

(2) Personal Data Protection Authority, The Right to be Forgotten (Evaluation of the Right to be Forgotten Specific to Search Engines)