• 2022 September 7
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Right To Be Forgotten

Right To Be Forgotten

In today's digital landscape, where all sorts of data can be recorded and removing such is incredibly hard due to rapid and wide information sharing Ii is important that certain records cease to be accessible, especially after a period of time, so that the individual can pursue his/her life freely. In this context, requests to remove the results of searches using a person's first and last name from search engines such as Google have become quite widespread. This article on the right to be forgotten, which forms the basis of these requests, will discuss the ways in which these and similar requests can be made, the criteria according to which applications are/or should be evaluated, and the limits of the right to be forgotten.

Background and Legal Framework of The Right to be Forgotten

Today, the fact that most of the data is generated and stored on the internet has made it inevitable to make it easier to access data. Since the data distributed and shared on the internet can be stored for many years, “being forgotten” has been brought forth as a right and more courts across the globe now recognize the just benefit of someone’s request to have data that is theirs be removed from the internet.

The right to be forgotten is defined as “the individual's right to request that the information that has been lawfully disseminated in the past and is accurate be removed from access or not brought forth due to the passage of time”. Of course, the right to be forgotten is an extension of personal rights and is closely related to concepts such as the right of privacy and the dignity of an individual. Within this scope, interests related to the right to privacy, the right to erasure, and the right to delete are also protected under the right to be forgotten. In this context, the right to be forgotten from the perspective of the individual is addressed on the grounds of preventing others from accessing the information published about the individual in order for the individual to restart and/or continue his/her life.

According to a view in the doctrine, the right to be forgotten, albeit indirectly, contributes to social interest. Indefinite access to data by everyone makes it inevitable for individuals to be indefinitely remembered with information they do not want to be remembered by. The right to be forgotten plays a key role in terms of public conscience by giving these individuals the opportunity to start over. In other words, the opportunity to start from a clean slate brings along social forgiveness. On the other hand, there are many criticisms that removing access to criminal data reduces the deterrence of crime.

In court rulings regarding data removal from digital archives based on the right to be forgotten, it is evaluated whether the data in question meets certain criteria. Turkish Constitutional Court’s N.B.B. decision explains the above-mentioned criteria as: “[…] in order for an internet news to be removed within the scope of the right to be forgotten, the content of the broadcast, the time it remains on air, whether it is current or not, whether it is deemed as historical data, its contribution to public interest, whether the subject of the news is a politician or a celebrity, the subject of the news or article, whether the news contains factual facts or value judgments in this context, and the public's interest in the relevant data should be evaluated in terms of each event.” As can be observed from the ruling, in the implementation of the right to be forgotten, a detailed evaluation mechanism has been adopted by developing certain criteria regarding the information and the subject of such data.

Mechanisms Protecting the Right to Be Forgotten

Applying to the data controller with the aim of removing unwanted data can be considered as the fastest responding protective mechanism. In this mechanism, such applications are to be made to the search engines that have published such data. For instance, if the relevant data was published by Google, an application for content removal must be submitted to Google. As a matter of fact, this mechanism is widely used before Google and such application can be easily made via filling out a form.

According to the report published by Google, 46.2% of the content removal requests between the years of 2014-2020 were successful and such content was removed from Google. In the form for the content removal application, the applicant is expected to explain the aspect in which the relevant data violates the right to be forgotten and provide reasoning. Following the application, if it is deemed that the removal request is appropriate, the relevant data will be removed from search results.

If the request is rejected, a protection mechanism in accordance with the Personal Data Protection Law No. 6698 consisting primarily of applying to the Personal Data Protection Board, and then applying to judicial authorities can be carried out. Lastly, if these applications fail to yield positive results, it is possible to apply to the Constitutional Court through the individual application mechanism.

The implementation of the right to be forgotten does not necessarily require complete deletion of the data from the relevant website, such right can be protected through various other mechanisms. As will be explained in detail below, the right to be forgotten is inherently in conflict with the freedom of expression and the freedom of press, and the mechanisms protecting the right to be forgotten are the manifestation of such conflict. Mechanisms such as anonymization, de-indexing or content restrictions have been developed around this conflict and a mechanism that is mindful of the simple balance between these rights was attempted to be created.

The Court of Justice of the European Union’s Google Ruling   

The opinion on the right to be forgotten provided by the Court of Justice of the European Union [the “CJEU”] to the Spanish Supreme Court regarding the case of Google Spain SL v. M.C.G dated 13 May 2014is an important one that brings the right to be forgotten into discussion. Following the ruling of the CJEU, the right to be forgotten quickly became the subject of many judicial rulings. In summary, in the case that led to the Google ruling, it is stated that a lawyer has requested that the news links that appear in search results following them typing their name economically negatively affects their business and should thus be removed. Such news links lead to information in the local newspapers that "the properties in his possession have been seized and an auction will be held for such". The aforementioned news was published in local newspapers as required by the legislation in order for the auction to take place. It should be noted that although there was no digital data published at the time of the announcement, the relevant post was transferred to the internet and the news subject to the lawsuit became accessible to all with the subsequent digitalization of the newspaper.

The applicant lawyer initially requested that the newspaper remove such news in 2010, however, such initial compliant was rejected.  He subsequently applied to the Spanish Data Protection Agency a complaint against Google Spain and Google Inc. and as a result, the complaint against the newspaper was rejected while the complaints against Google Spain and Google Inc. were upheld. The agency emphasized that the appearance of personal data in the search engine as a title is contrary to the data protection legislation and took the view that the search engine operators are liable in restricting access. Thereupon, Google Spain and Google Inc. brought separate actions against that decision before the Spanish High Court and the Spanish High Court referred the case to CJEU for their opinion.

The CJEU held that the initial news for the auction had been published 16 years ago and given that the applicant lawyer -the data subject- by taking into account the role he plays in society had a legitimate interest in requesting the removal of the news for auction from the search results , that there is no apparent reason showing that there is an overriding public interest in accessing such information.

In this respect, the CJEU Google Ruling is a turning point in protecting personal rights in the rapidly expanding global data flow. As well as assessing the obligations of search engines, the CJEU has also taken an essential step towards the enforcement of the right to be forgotten.

The Right to be Forgotten vis a vis Freedom of Expression and Freedom of Press

Freedom of expression and freedom of press are undoubtedly among the most sacred rights protected under the constitutions of all sovereign countries. The Universal Declaration of Human Rights and the European Convention on Human Rights, as well as many other consensuses such as international declarations, statements, agreements, etc. have secured the freedom of expression as a fundamental human right. It is often emphasized that a democratic society cannot be formed without the free expression of emotions and thoughts, and that if such is restricted, the legitimate purpose of the restriction must be evaluated delicately.

The rights of individuals to request the removal of information that is shared and stored about them of course stands on the opposite end of the spectrum where the freedom of expression and freedom of press exists. In simplest terms, the right to be forgotten limits the freedom of expression and the freedom of press in certain aspects. Thus, when assessing the request of individuals to remove the data shared about them within the framework of the right to be forgotten, as little intervention as possible should be made to what or who played a role in sharing such data. Therefore, there are certain criticisms that limiting the data stored in digital archives with respect to individual dominant need also limits the contribution of technology to democratic information exchange.

The point emphasized in the evaluation of freedom of expression and freedom of press in judicial rulings regarding the right to be forgotten is that the information in the media is no longer of interest to the public or that the information in the media is not accurate. However, the fact that it is decided that such data does not concern the public now does not mean that it will not be of public concern 10 years later from such decision. Within this framework, the consequences of the limits of the right to be forgotten from the perspective of other rights and freedoms should be carefully considered.

This article was also published in Bloomberg Businessweek Turkey, please click here to access the article's content [available only in Turkish].