Is it possible to be forgotten at a time when our every move leaves its mark on the digital world? Can we lose track of ourselves completely on the internet? This seems unlikely but still maybe it is possible to be forgotten on some issues.
Perhaps it is not the exact answer to these questions but we can say that the right to be forgotten in Turkey is a tool of our questions above, with the aim of “opening a new page” or “leaving the past behind”. Even though the right to be forgotten does not yet have a clear regulation in Turkish law, we see the reflections of the regulations and approaches in the EU in the decisions of the Turkish Constitutional Court, in the approach of the Turkish Supreme Court, and in the decisions of the Turkish Personal Data Protection Board. As it is regulated in General Data Protection Regulation (GDPR)1. This right basically provides the data subject the right to request that the personal data in the content on the internet, are not listed in internet search engines.
It should be noted that the exercise of this right does not ensure the removal of the content from the internet, the content continues to exist on the internet but the connection between the content and personal data is removed so that the relevant content is not listed among the results in the search engine. So again, does it really makes us forgotten?
Stance of Turkish Constitutional Court
As we mentioned above, the Turkish Constitutional Court has made the definition, scope and application of the right to be forgotten in Turkey in its decisions. In its decision no. 2013/5653, the applicant applied to the Court and asked for the removal of the news published many years ago in the newspaper’s archive, which are about him using drugs. The Court stated that; “As of the date of the application, it is clear that the news in question relates to an incident of about fourteen years ago and is thus out of date. In terms of the content of the news, it cannot be said that it is imperative to ensure that a news report about drug use is easily accessible on the Internet for historical, statistical or scientific purposes. In this connection, it is clear that the easy availability of news published on the Internet about the applicant, who had no political or media personality in the public interest, had damaged the applicant’s reputation”2.
Importance of the time elapsed
We can see that the Court has emphasised that the news is out of date in connection with the time elapsed and this situation damages the honor and reputation of the person which we think is the most significant and beneficial usage of the right to be forgotten in Turkey. The Court also stated that; “……., in order for an Internet news to be removed from the internet within the scope of the right to be forgotten, the content of the publication, the duration it remains on the air, the fact that it is out of date, the inability to be accepted as a historical data, its contribution to the public interest (the value of the news in social terms, the quality of the news that sheds light on the future), whether the person subject to the news is a politician or famous, the subject of the news or article, whether the news contains factual facts or value judgments in this context, issues such as public interest in relevant data need to be examined in terms of each concrete case”2.
Balance between right to be forgotten and public interest
With this statement we understand that there will be an assessment to be taken into account in the balance of the right to be forgotten and public interest. In other words, it will not be possible to meet everyone’s demands in this context and who you are , what is the content of the news will be important.
General Assembly’s Stance
The General Assembly of the Turkish Supreme Court also has mentioned the right to be forgotten in Turkey in its decision dated 17.06.2015 and numbered 2015/1679. In the case subject to the verdict; the plaintiff claims that her personal rights were attacked because she and other people’s names were clearly mentioned in a piece of writing as a result of the criminal trial about sexual harassment. The General Assembly stated that; “The plaintiff wants a bad incident happened in the past to be erased from the memory of society.
Right to shape future freely
With the right to be forgotten, the plaintiff wants to freely shape the future by forgetting an unfortunate event in his past, in other words, to open a new page in life. Moreover, the plaintiff insisted on this demand in his petitions filed during the trial. The plaintiff wants the right to be forgotten and the personal data related to her private life not to be known by third parties and to be deleted from the public memory due to the intervening time”3. At this point, the exercise of the right to be forgotten will make a difference in a person’s life who has gone through an unfortunate event and doesn’t want to be judged by his/her past. And who wouldn’t want that?
Turkish Personal Data Protection Board
The Turkish Personal Data Protection Board also published its decision dated 23.06.2020 and numbered 2020/481 about the requests for the removal of personal data from the search engine.
Search engine as data controller
The importance of this decision was that the board defined the search engine as a data controller in line with its data processing activity. This means that search engines will be obligated to respond to data relevant persons, if not, the relevant person may file a complaint with the Board.
Evaluation of conflicting rights by the board
In it’s decision the Board also mentions how to evaluate the rights in conflict. It said that a balance test should be carried out between the fundamental rights and freedoms of the relevant person and the interests that the public will obtain from obtaining the information, which of the competing interests prevails and when making this evaluation, the criteria list published by the Board should be taken into consideration as a priority, but the criteria to be taken into account in the evaluation process of the complaints in this regard shall not be limited to these, and additional criteria shall be raised by the Board in each concrete case.
Has Turkey adopted The Right To Be Forgotten?
As we mentioned that there is no explicit provision about the right to be forgotten in the Turkish Law, but we see regulations that rever to the right. In the Law No. 7253 it is regulated that; “If requested by those whose personal rights have been violated due to the content of the publication on the Internet, the judge may decide not to associate the applicant’s name with the internet addresses subject to the decision under this article”6. This regulation mentions a way of using the right to be forgotten.
As we can see from the decisions and regulations above mentioned, it is possible to say that the right to be forgotten has been adopted into the Turkish Law and the demands of the relevant persons have been met and it has been put into practice in parallel with the regulations in the EU.
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REFERENCES:
- General Data Protection Regulation (GDPR)
- Turkish Data Protection Law (TDPL)
- https://kararlarbilgibankasi.anayasa.gov.tr/BB/2013/5653
- https://www.lexpera.com.tr/ictihat/yargitay/hukuk-genel-kurulu-e-2014-56-k-2015-1679-t-17-6-2015
- https://www.kvkk.gov.tr/SharedFolderServer/CMSFiles/95d8ad1b-e849-48c6-ba93-02ecedeffde5.pdf
- https://www.mbkaya.com/hukuk/unutulmahakki.pdf
- http://nek.istanbul.edu.tr:4444/ekos/TEZ/51358.pdf
- https://dergipark.org.tr/tr/download/article-file/742611