02 Mar Right to be Forgotten
The Personal Data Protection Board (“Board”), with its decision dated 23.06.2020 and numbered 2020/481, made an assessment as to the general idea of “Right to be Forgotten” regarding the requests for removing search results made with the names of individuals from the search engines.
The Board defines the Right to be Forgotten as “the individual's ability to request that the information that has been legally disseminated in the past and of an accurate nature be removed from access due to the passage of time”. This right has already been implemented in the European Union, and it is generally encountered as a request to remove some results when searching for names from search engines.
Although there is no legislation defined by this name in Turkish Law, the basis of the Right to be Forgotten has been created by considering different legislation. Article 20 of the Constitution grants individuals the right to demand the deletion of their personal data:
“Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/ her personal data, and to be informed whether these are used 26in consistency with envisaged objectives.”
In addition, with articles 4, 7 and 11 of the Law on Protection of Personal Data No. 6698 (“Law”), it is stipulated that the deletion of personal data is a right, that the obligors must comply with it and the data subjects can apply for the exercise of these rights.
On the other hand, it is seen that the Right to be Forgotten is the subject of judicial decisions even before the Law comes into force. In the decision of the Constitutional Court dated 03.03.2016 and application number 2013/5653, the request to “forget the actions of the individual that has been reported in the past internet news archives and that has not been claimed to be untrue” is defined as the Right to Be Forgotten. As a result of its evaluation, the Constitutional Court decided that the concerned news violated the individual's right to personal reputation and honor guaranteed in Article 17 of the Constitution.
In the regarding decision, it was also mentioned that a block could be imposed by referring to Article 9 of the Law on the Regulation of Internet Broadcasts and Combating Crimes Committed Through These Broadcasts No. 5651. The decision approached the Right to be Forgotten as a general concept and presented erasure and anonymization as a way to establish this right.
In the decision of the General Assembly of Civil Chambers, dated 17.06.2015 and numbered E.2014/4-56, K.2015/1679 on the subject, it is stated that the individual's ability to shape his future by getting rid of the negative effects of his past is beneficial to the individual and has a positive impact on the development of the society as well. For this reason, it has been emphasized that ensuring the right to be forgotten is not only beneficial to the individual but also to the society.
Right to be Forgotten can be observed evaluated within the international law as well;
- Court of Justice of the European Union (“EUJ”) stated with its Google Spain decision in 2014 that the Right to be Forgotten should be accepted as one of the basic human rights. And in the guide published by the Article 29 Working Group on the implementation of this decision; Right to Be Forgotten is not mentioned as a notion, the issue is discussed here mostly through concepts such as the right to be removed from the index, hiding the links in the search engine results and,
- In the General Data Protection Regulation, which entered into force on May 25, 2018, there is an article titled "The Right to Erasure (‘Right to be Forgotten’)”.
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The Board, in its decision determined that; (i) even if the Right to be Forgotten is not included as a concept in our legislation, there are tools in our law to implement this right and (ii) it did not need to be defined as a separate right.
Based on these evaluations, the Board ruled that;
- requesting that search engines do not reach results related to the person him/her self in searches made with him/her name and surname is considered as a request to be removed from the index,
- in this context, search engines will have the title of data controller, their activities will be considered as data processing activities, and therefore it is necessary to make a request to search engines before making a complaint to the Board,
- in the evaluation of the requests in question, a balance test shall be carried out between the fundamental rights and freedoms of the data subject and the benefits that the public will derive from obtaining the information in question, and
- in case the requests of the data subject to be removed from the index to the search engines are rejected, they may apply to the Board as well as go through courts.
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In addition to the decision, a document titled “Criteria to be Considered in the Evaluation of Removing the Results of Searches Made on Search Engines with Names and Surnames of Persons from the Index” has been prepared by the Board. Although some criteria are stated here, it is not explained how, and with which order these criteria should be used. For this reason, in our opinion, the document in question does not provide sufficient guidance or explanation.
With this decision, the Board reinforced the place of the Right to be Forgotten in Turkish Law, together with the high judicial decisions made in the past. And data subjects have been provided with another authority to apply in such matters. Data subjects whose requests are rejected after the application to the data controller can apply to the judiciary as well as to the Board. It is possible for people who want to exercise this right to achieve the results they want if they apply to the required avenues with an expert lawyer.
You can reach our İzmir Personal Data Lawyers to get expert legal support on the protection of your personal data or your company's personal data law compliance.
