THE RIGHT OF DIGITAL AGE : RIGHT TO FORGOTTEN
22.07.2019 | Global Legal Matters | 1523
When personal data is shared in
digital media, these data are recorded in these media. These recorded data are
used by third parties without the consent of the individual. The
concept of the right to be forgotten has been brought to the agenda in order to
eliminate the situation caused by the use of the information related to the
private areas of individuals without their consent. "Right to be
forgotten" is defined as the elimination / deletion of any disturbing
personal content belonging to the individuals in the digital memory, which can
not be brought back again upon the request of the individuals.[1]
The
right to be forgotten is that individuals may request that these personal data,
which they find annoying, be removed irrevocably so that they do not negatively
affect their future. The Internet's “flawless memory’ can bring events that
will be erased from social memory under normal circumstances, even if years
have passed and the person has abstracted himself from these events. The
Internet, which has become the sole source of information, is also a
determinant of society's perception of the individual. The right to be
forgotten is a legal remedy at this point. The right to be forgotten gives
individuals the opportunity to draw a sponge in their past and freely shape the
rest of their lives. The right to be forgotten differs from the
correction of incorrect information and emerges as a solution to the negative
effects of past information.[2]
Decision of the European Court of
Justice :
The basis of the case, which forms the
basis of the European Court of Justice's ruling on the right to be forgotten,
is based on the publication of a daily newspaper "La Vanguardia"
dated 19 January and 9 March 1998, when an internet user's search engine
entered the name of the lawyer "Mr Costeja González" on Google. The
two pages of this link and the link given to the pages of the name of Costeja
Gonzalez explicitly include the information about the foreclosure process due
to social security debts. Costeja Gonzalez demanded that the La
Vanguardia newspaper first remove these pages or make changes to the personal
data about it no longer visible, or that certain data should be used to protect
personal data by using the opportunities provided by search engines. Secondly,
it was noted that the foreclosure proceedings had disappeared years ago, and
that citations to these transactions were now completely irrelevant; their
companies remove or conceal such personal data about them; thus, he filed a
complaint with the "Spanish Data Protection Agency (IVKK)",
requesting that it not appear in search engines and no longer appear in links
to La Vanguardia. [3] The ABAD
ruled that even if a correct information was published in accordance with the
law (as a newspaper report in a concrete case), the dissemination of this
information could become unlawful with the passage of time. Accordingly, the
search engine operators have been obliged to remove the links to the websites
containing such information from the search results.
Right to be forgotten in Turkish Law:
Although there is no specific
regulation on the right to be forgotten, the right to be forgotten is based on
the Constitution and the Civil Code. Right to be Forgotten is recognized as the
first decision of the Supreme Court and the Constitutional Court in Turkey.
The
principle of the rule of law (constitution article 2), which can be considered
as the basis of the right to be forgotten in Turkish law (constitution article
2), the right of the individual to freely develop his / her material and moral
existence (constitution article17), the right to privacy (constitution article
20), the immunity of housing (constitution article 21), confidentiality of
communication ( constitution article 22), inability to explain religious and conscientious
opinions ( constitution article24), thoughts and opinions can not be forced to
explain (constitution article 25) "in the context of constitutional
arrangements. It has been recognized. The right to be forgotten can also be
asserted under the Law on the Protection of Personal Data. The fundamental
principles in the Personal Data Protection Act, in particular the silin
deletion of personal data,, provide the right to be forgotten.
It should be noted that the decisions
of the Constitutional Court and the Court of Cassation on the right to be
forgotten are referred to Google Spain in the assessment of the scope of the
right.
The decision of the Court of
Cassation regarding the Right to Be Forgotten: “…. As for the right to be forgotten; the right
to be forgotten, and the associated, storage and retention of personal data to
the extent necessary and for the shortest period of time, is in fact the right
to the protection of personal data. The basis of both rights is to ensure that
the individual can save freely on his / her personal data, make plans for the
future without obstructing 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 negatively affected by his own will in the past or
because of an event caused by the third person.
It is indisputable for the
individual to benefit from the negative effects of his / her past and to shape
his / her future, as well as the effect of the quality of society on the development
level of the society. Right to be forgotten; Unless there is a superior public
interest, it can be expressed as the right to demand that the negative events
taking place in the digital memory be forgotten after a while and that the
personal data that others do not want to know to be prevented from being
deleted and disseminated… ”[4]
Conclusion and Opinion:
The protection of individuals'
personal data serves to protect the privacy of private life, which is a
constitutional right. The internet, which is easily accessible by everyone
today, violates individuals' right to be forgotten, including the need to store
personal data unnecessarily for long periods of time, the right to privacy and
the protection of personal data. Permanent violation of this right will always
be an obstacle to the formation of the desired, ideal society structure. If the
consequences of a person's past life have an impact on the rest of his or her
life, it will mean that he or she is forced to struggle with other people's prejudices
for these reasons. Therefore, the right to be forgotten is important and quite
necessary for an individual to open a new page in his / her life.
Since access to personal data of
individuals is very easy due to current technological developments, a clear and
comprehensive legal regulation on the right to be forgotten specifically needs
to be made in order to combat any possible negative effects.
[1] Gülener,
S., "Dijital Hafızadan Silinmeyi İstemek: Temel Bir İnsan Hakkı Olarak
'Unutulma Hakkı'", Türkiye Barolar Birliği Dergisi, Y. 2012, Sa. 102, s.
226.
[2] Eren
Sözüer, Unutulma Hakkı: İnsan Hakları Hukuku Perspektifinden Bir İnceleme,
(İstanbul, 2017: On İki Levha Yayıncılık)
[3] http://dergiler.ankara.edu.tr/dergiler/38/2150/22268.pdf
[4] Yargıtay
Hukuk Genel Kurulunun 17/6/2015 tarihli ve E.2014/4-56, K.2015/1679 sayılı
kararı