I- THE CONCEPT OF THE RIGHT TO BE FORGOTTEN IN GENERAL
The right to be forgotten can be briefly defined as the right of the individual to request that the information that has been legally disseminated in the past and is accurate in the past, is removed from access or not brought to the agenda depending on the passage of time. In the world, “the right to oblivion” corresponds to “the right to be forgetten”. In general, this concept can be expressed as a person’s right to request that certain events that he or she has experienced in the past, especially those that occupy a place in digital memory and that he now describes as negative, be forgotten, that his personal data that he does not want to be learned or remembered by the public, be deleted and prevented from being disseminated.
Today, the internet, as a wide world of possibilities, shapes new behavior patterns in all areas of life, from scientific productivity to commercial shopping, from the organization of non-governmental organizations to communication, from entertainment and leisure opportunities to home and office security. Social media, which has emerged thanks to today’s internet technology, is frequently used and sometimes addictive, has spread and developed rapidly in the internet environment with the start of “facebook” in 2004 and “twitter” in 2006. Such social networks, where personal information is shared, are not only a means for individuals to have fun and communicate, but also allow private life to be disclosed.[1]
Although the right to be forgotten is considered within the scope of digital media and especially the information on the Internet, its origins date back to 20th Century Continental Europe. The right to be forgotten, especially in the context of the crimes of ex-convicts, is accepted as the right to have their criminal records deleted or removed from access within the scope of the rehabilitation process, or not to bring the past crime to the agenda through mass media. In this way, it is aimed that the label on people, depending on the crime they have committed, will disappear after a while and that individuals can continue to life and society. However, the international recognition of the right to be forgotten has been achieved with the 2014 Google Spain decision of the European Court of Justice (EUAD).
The case that formed the basis of the said decision of the CJEU, M.C.G. This is a lawsuit filed by a lawyer named .. As a result of the lawsuit, the Spanish Courts ordered the search engine to remove the relevant links, but did not make any decision about the newspapers to which the links were related. The search engine, which appealed the case, applied to the CJEU to express its opinion on the subject. CJEU., 95/46 EC. EU No. “On the Protection of Individuals Against the Processing and Free Movement of Personal Data”. In its decision dated 13.05.2014 on the subject given within the framework of the Directive, it is not appropriate to provide a link (link) that will reveal an information that took place sixteen years ago (and does not want to be remembered by the person) in a search made by the search engine with the name of the person, and that the person may request not to provide such a link. has ruled. The cases in which the right to be forgotten cannot be exercised for deletion of the link are stated as the relevant link’s demonstrating superior public interest, the important role it plays in public life, and the public’s retrospective interest in the data in question. Although the search engine argued that the deletion of some personal data would prevent the public’s right to information, the CJEU stated that the privacy of individuals is superior to the freedom of information of individuals and the economic interests of the search engine in such an event, and that this principle is only in the public’s best interest in obtaining information. It has decided that the personal data subject to the case should be excluded from the search results (unless there are such special reasons revealing the superior public interest) on the grounds that it will not be applied in cases where it is found.[2] CJEU has ruled that even if correct information was published in accordance with the law (as a newspaper article in the concrete case), this information may become unlawful with the passage of time. Accordingly, search engine operators are obliged to remove links to websites containing such information from search results.
In the digital environment, search engines such as Google, Yahoo and Yandex allow people to search the internet in relation to their names or various topics. As a result of searches, all content related to that subject or person can be accessed. Depending on the developing technology, all information about the data subject can be accessed in a short time, both quickly and in detail. It is possible to easily access any information from anywhere with an internet infrastructure, thanks to search engines. Therefore, as can be seen from the decision made, it is a general decision for all search engines, not just Google. After the decision of the European Court of Justice, users who want to use this new right can request the deletion of the content in the search engine by applying to Google over the internet and filling out the necessary forms, so they can benefit from the right to be forgotten.
It is seen that the precedent decision of the Court of Justice of the European Union identifies the right to be forgotten with the concept of personal data. The Law on the Protection of Personal Data No. 6698, which was published in the Official Gazette on 07.04.206, has been prepared on the basis of the Directive 95/46 of the European Union. According to Law No. 6698, Personal Data is expressed as “any information relating to an identified or identifiable natural person”.
The aforementioned information is based on nationality, ethnic origin, religious/philosophical beliefs, social/political beliefs, photograph, voice, biometric records such as fingerprints taken for security purposes, retinal map, odor recognition, physical characteristics, appearance, sexual orientation, which reveal the identity of a particular person. tendencies, blood type, medical analysis values, health, medical and forensic history, place of residence, bank account and credit card information, electronic passwords, signature, shopping habits, education and working status, professional secrets, retirement, corporate registry or tax number, social security records, personal and/or familial relationships, communication data such as phone messages, phone book, phone number, e-mail or social media account and their contents, personal computer’s IP. address etc. They may consist of all kinds of information about. In this context, it is possible to gain the ability to reach the goals (that can be said) of all the lessons that can be chosen from all the options that can be chosen, have risks or can be learned in a way that can be learned, learned, preferred or remembered. something to be considered.
Unutulma şansın, İnternet’in tamamı gibi gözden geçirilmesi için tercih edilen kişilerin tümüne yöneliktir. Diğer taraftan, bu haktan alınmaması, alınmadan bu tür verilerin alınması, hatırlanan bu tür verilerden faydalanılması için kullanılır. Görül kişiliğinde, unutulmuş olma ihtimalina arşivlenmiş (evdeyken geçmişe yönelik ve çocuklarla seyahat etmekteyken).
II- THE RIGHT TO BE FORGOTTEN AND THE LEGAL FOUNDATION IN TURKISH LAW
Although there is no regulation in the 1982 Constitution that directly protects the right to be forgotten, it is seen that it is indirectly protected by various articles. In the 5th article of the Constitution, which is regulated under the title of “the main goals and duties of the state”, the statement “trying to prepare the necessary conditions for the development of the material and spiritual existence of the human being” imposes a positive obligation on the state. In the context of this obligation, when considered together with the right to protect the honor and reputation of the person in the context of the moral integrity of the person, regulated in Article 17 of the Constitution, and the right to demand the protection of personal data guaranteed in the third paragraph of Article 20 of the Constitution, the state prevents the individual from learning about his past experiences by preventing the “new” It is clear that he has a responsibility to give the opportunity to “turn a page”. In particular, the right to request the deletion of personal data within the scope of the right to protect personal data includes allowing individuals to forget the negativities they have experienced in their past. Therefore, the right to be forgotten, which is not clearly regulated in the Constitution, appears as a natural consequence of the 5th, 17th and 20th articles of the Constitution in order to prevent access to the news that is easy to access via the Internet and stored in digital memory. On the other hand, refusal to accept the right to be forgotten makes the interference necessary for the development of an honorable life and moral independence necessary for the development of his spiritual existence, as it can create prejudices about people by others due to personal data that can be easily accessed through the Internet and can be kept for a long time.
“The principle of the rule of law (AY. art. 2), inviolability of residence (AY. art. 21), confidentiality of communication (AY. art. 22), not being compelled to reveal religious and conscientious convictions (AY. article 24), to express thoughts and convictions. Constitutional regulations such as “not being forced (AY. art. 25)” are among the articles that constitute the constitutional basis of the right to be forgotten in Turkish Law. In addition, the illegal use of personal data and acts violating the privacy of private life are subject to criminal sanctions in Articles 134 and the following of the Turkish Penal Code No. 5237. The rights of individuals on their own photographs are regulated in Article 86 of the Law on Intellectual and Artistic Works. Accordingly, even if they are not in the nature of a work, pictures and portraits of persons cannot be made public without the permission of the person depicted. Even if the photograph is first presented to the public in accordance with the law, it will be considered unlawful if the person continues to be published and exhibited after the person’s consent is lost.
With the adoption of the Law on Protection of Personal Data No. 6698, personal data has finally been put under legal protection. The purpose of the law and the legal values it protects are explained in Article 1 as “protecting the fundamental rights and freedoms of individuals, especially the privacy of private life, in the processing of personal data, and regulating the obligations of natural and legal persons who process personal data and the procedures and principles to be followed”. The right to be forgotten continues to be protected through all legal regulations, as well as the case-laws developed by the ECtHR, the Constitutional Court and the Supreme Court day by day. In this context, the decision of the General Assembly of the Constitutional Court with the application number 2013/5653 dated 03.03.2016 and the decision of the Supreme Court of Appeals General Assembly dated 17/6/2015 and numbered E.2014/4-56, K.2015/1679 are important.
1- 1- The decision of the Supreme Court of Appeals General Assembly dated 17/6/2015 and numbered E.2014/4-56, K.2015/1679
In the case, which is the subject of the Supreme Court of Appeals General Assembly, the plaintiff is involved in the capacity of the victim of sexual assault severally, by abusing the influence provided by his public office or service relationship. The plaintiff, who was single at the time of the action and was a public official at the end of the trial, was sentenced. At the end of the examination made on the appeal request, the judgment was upheld in 2009. The victim plaintiff clearly explained how the sexual assault took place both during the preparation and during the trial, and these statements were naturally included in the text of the decision. The decision was included in the book published in April 2010 without the names of the victims and the accused being pseudonymous. The name of the plaintiff in a book without consent is in the nature of personal data. It should also be stated that; Considering the definitions of the right to be forgotten, although it is regulated for digital data, when the characteristics of this right and its relationship with human rights are taken into account; 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 easily accessible to the public. The plaintiff wants a bad event that he experienced in the past to be erased from the public’s memory. With the right to be forgotten, she wants the opportunity to shape her future freely by forgetting an unfortunate event in her past, in other words, to open a new page in her life. Moreover, the plaintiff insisted on this request in his petitions during the trial. With the right to be forgotten, the plaintiff wants his personal data regarding his private life not to be known by third parties and to be erased from the public’s memory due to the elapsed time. The Supreme Court of Appeals General Assembly explained the claimant’s claim and the nature of his right to be forgotten with the following sentences.
“…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 personal data protection. The basis of both rights lies in ensuring that the individual can freely dispose of his personal data, plan for the future without being hindered by 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 adversely affected by his own will or due to an event caused by a third party. It is indisputable that the individual’s ability to shape his future by getting rid of the negative effects he has experienced in the past is for the benefit of the individual, as well as the increase in the quality of the society and the level of development.
The right to be forgotten; Unless there is a superior public interest, it can be expressed as the right to request that the negative events in the digital memory be forgotten after a while, and the deletion and prevention of the dissemination of personal data that they do not want others to know.
This right, on the one hand, provides the person with “control of his past”, “the right to request that certain issues be deleted from his/her history and not to be remembered”, on the other hand, it also imposes an obligation on his addressees to take precautions against third parties not using or remembering certain information about the person. This is your right; It is accepted that individuals have the right to demand the removal of information about their past punishments or information and photos that may cause negative comments, as well as forcing third parties to delete content about themselves such as photographs and blogs. On the other hand, this right requires measures to be taken so that certain aspects of the individual’s past are not recalled in an improbable way.[3]
In the decision of the Supreme Court of Appeals General Assembly, which is associated with the right to be forgotten, it is seen that it defines the right and explains its scope. The applicant’s request to be forgotten was evaluated by considering the balance between the freedom of science and art and the privacy of private life. As a matter of fact, accepting that the name of the plaintiff is personal data, it has considered it unlawful to publish his name without the consent of the person, even for scientific research. He evaluated the claimant’s right to be forgotten and his personal data regarding his private life not to be known by third parties, and his request to be erased from the public’s memory due to the time elapsed, within the scope of the right to be forgotten and accepted his case. The relevant decision sets an example in terms of Turkish legal history.
2- Decision of the General Assembly of the Constitutional Court regarding the file with the application number 2013/5653 dated 03.03.2016
The subject of the application is the claim that rejecting the request for the removal of content related to news and publications accessible in the Internet news archive of a newspaper violates the right to protect honor and reputation. A total of three news headlines, two in 1998 and one in 1999, were published on the Internet archive pages of a nationally-published newspaper, regarding the incident for which a judicial fine was imposed as a result of a criminal prosecution against the applicant for alleged drug use. The applicant stated that the news about him continued to be published in the archive section of the website of the relevant press organization and sent a warning to the relevant press organization about the abolition of the Internet broadcast on 2/4/2013. This warning was served on 3/4/2013. It has been claimed that the news published on the website in the content of the warning letter damaged the honor and dignity of the applicant, destroyed his privacy regarding his private life, and adversely affected his work and social life, especially his family life, although he was not a famous public figure.
After the applicant’s request was not fulfilled, he took legal action and the local court decided to accept his case. However, the decision was reviewed on appeal, following the newspaper’s objection, and “The news titled “The subject of the request … and … published on the sites named … and … there is no content that violates the honor and dignity of the person who requested the removal of the content from the publication, as well as in accordance with the visible reality at the time of publication of the archival news.” The decision was abolished on the grounds that “even if there are opinions (in the form of opinions and facts) that disturb the person making the request in the article, the journalist who does not intend to violate rights will not be held responsible for this even if the facts turn out to be wrong later on, and that words and sentences that attack the personal rights of the person making the request are not used”. Upon the annulment of the decision against the plaintiff, the concrete case was subjected to the examination of the Constitutional Court with an individual application.
With the development of the digital press, the AYM stated that the events that people experienced took place on the Internet: “Before the spread of the Internet, the private lives of people regarding their past were lost in time. However, although any record was kept of individuals’ past experiences, the difficulty of accessing these records allowed people to continue their lives independently of the mistakes they made in their past. However, today, a simple Internet research easily reveals the mistakes that individuals have made in the past and that they do not want to remember and/or to be remembered. In this context, the Internet environment has made the news easily accessible, which remained in the archive and could only be detected by the special efforts of researchers or enthusiasts. The ease of access to news archives has created a virtual environment that does not allow the news about people to be forgotten. When this situation is evaluated together with the prevalence of the Internet, it has strengthened the possibility that the things that individuals have done in the past and that they do not want to be remembered will constantly come up to people. This situation, which has emerged with the widespread use of the Internet, has disrupted the balance between freedom of expression and press and the protection of honor and reputation in favor of the former, together with the effective use of the Internet by the press. Freedom of expression and the press, as well as the right to protect honor and reputation, are fundamental rights and freedoms that require equal protection. For this reason, it has become a necessity to re-establish the disturbed balance between both fundamental rights. Re-establishing the aforementioned balance today, when it is difficult to be forgotten together with internet journalism, can only be possible by accepting the right of individuals to be forgotten in terms of honor and reputation.[4] and emphasized the necessity of individuals’ right to be forgotten.
In the same decision, various criteria were included in terms of examining the right to be forgotten and local courts were guided. Every concrete event for which the right to be forgotten is demanded; the content of the broadcast, the time it is in the air, being out of date, being accepted as a historical data, the contribution of the content to the public interest, the politician or famous identity of the person who is the subject of the news, the subject of the news or article, whether the news contains factual facts or value judgments in this context, will be examined in terms of issues such as its relevance to the data and the existence of a violation of personal rights will be determined.
In the context of the right to be forgotten, various measures can be taken within the scope of Law No. 5651 in order to balance between freedoms of expression and the press and the right to protect honor and reputation. However, the measures to be taken must be based on the criterion of proportionality in accordance with Article 13 of the Constitution. As a matter of fact, in order to prevent interventions to the honor and reputation of the person in accordance with the right to be forgotten, many methods can be adopted, such as deleting the personal data relating to the news and the person, which allows searching in the archive, anonymizing the news, and preventing access to some of the news content.
III- ASSESSMENT OF THE RIGHT TO BE FORGOTTEN
The legal nature of the right to be forgotten continues to develop day by day with the decisions of the CJEU, the ECHR, the Supreme Court and the Constitutional Court. In the light of the decisions made, the right to be forgotten generally means that certain (negative) events that the person has experienced in the past and that have a place in digital memory are forgotten over time, unless there is a superior public interest in archiving them, and that such personal data that he does not want to be learned/remembered by the society are deleted and prevented from being disseminated. can be expressed as the right to demand.[5]
As a result of the decisions examined above, it is seen that the right to be forgotten does not only apply to the digital press, but also to the print media and scientific research. Despite this, with the developing technology, the easily accessible and indelible image of social media emerges as the area where the right to be forgotten can be used the most. So much so that even a photo that a person voluntarily published on his own social media account years ago will be considered within the scope of the right to be forgotten and necessary measures can be taken in this context.
Exercising this right (infinitely or excessively) by the owner of the right to be forgotten may lead to the violation of personal values and fundamental freedoms of third parties. As a matter of fact, the right to be forgotten, like any personal value, is inherently prone to conflict with other people’s fundamental freedoms. Therefore, the limits of the right to be forgotten must be determined correctly in order to prevent abuse and to establish a fair balance between the conflicting values in case of conflict with the personal values of others. In this context, the general limit of the right to be forgotten is the second paragraph of Article 8 of the ECHR titled “respect for private and family life”. Accordingly, any interference by a public authority with the exercise of this right is permitted only if the interference is prescribed by law and is a measure necessary in a democratic society for national security, public safety, the economic well-being of the country, the protection of order, the prevention of crime, the protection of health or morals, or the protection of the rights and freedoms of others. situation may occur. The borders drawn by the 13th, 15th articles of the AY. in general and the 20th articles in the context of private life are also on the same axis. Likewise, the right to be forgotten cannot be used in the form of activities aimed at disrupting the indivisible integrity of the State with its territory and nation and abolishing the democratic and secular Republic based on human rights (AY.m.14/f.1). None of the provisions of the Constitution can be interpreted in a way that makes it possible for the State or individuals to carry out an activity aimed at destroying the fundamental rights and freedoms recognized by the Constitution or restricting them more broadly than specified in the Constitution (AY.m.14/f.2; ECHR.art.17).
[1] Güney Nair-Emine Balta, BİLGİ İLETİŞİM TEKNOLOJİLERİ KULLANIMINDA SINIRLARI AŞAN BİR SOSYAL SORUN ALANI OLARAK UNUTULMA HAKKI, CÜ Sosyal Bilimler Dergisi Aralık 2017, s. 116
[2] Sinan Sami Akkurt, 17.06.2015 Tarih, E. 2014/4-56, K. 2015/1679 Sayılı Yargıtay Hukuk Genel Kurulu Kararı ve Mukayeseli Hukuk Çerçevesinde “Unutulma Hakkı” , Ankara Üni. Hukuk Fak. Dergisi 2016, s. 2605-2635
[3] Yargıtay Hukuk Genel Kurulu’nun 17/6/2015 tarihli ve E.2014/4-56, K.2015/1679 sayılı kararı
[4] Anayasa Mahkemesi Genel Kurulunun 03.03.2016 tarihli 2013/5653 başvuru sayılı incelemesi
[5] Sinan Sami Akkurt, 17.06.2015 Tarih, E. 2014/4-56, K. 2015/1679 Sayılı Yargıtay Hukuk Genel Kurulu Kararı ve Mukayeseli Hukuk Çerçevesinde “Unutulma Hakkı” , Ankara Üni. Hukuk Fak. Dergisi 2016, s. 2605-2635
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