Right To Be Forgotten

Atty.Betül Arslan

 

Internet has become a real and an important part of our social lives, and any news are  published on numerous websites on internet, and become widespread within a short period of time. And those people who are mentioned in such news, may have trouble, as the news is published on different platforms in a short time. Even after many years, people who had been mentioned in news, can be found by typing their names on a search engine, and therefore, anyone can access the information about such people’s private lives. The right to be forgotten has emerged as a reflection of the protection of right to privacy and is a right that could be considered to propose the need for a balance between the freedom of expression and press and protection of right to reputation. The right to be forgotten refers to individuals’ right to demand the removal of any news from the internet, in the cases where such news are true and contains such information as identity, photographs, videos and address of such individuals, however, is not newsworthy any further, and loses its currency.

The right to be forgotten has been recognized officially through the case that is known as the Google Case.[1] The Google Case concerns Mario Costeja González, a Spanish national resident attorney, who searches his name on Google Search, and found the news stating he had to sell his house, and suffered due to the proceedings for the recovery of social security debts. The Google Case, having been heard and decreed in Spanish Courts, was brought to European Court of Justice, and the judgement was delivered on 13.05.2014. As per this judgement, individual has the right to say on their personal data that are imperfect, void, irrelevant, and to demand the removal and prevention of circulation of such data.

This right, referred to as the right to be forgotten in Universal Law, has been brought to Plenary of the Constitutional Court of the Republic of Turkey. The claimant in the said Case, had sent a warning to a national media institution on 02.04.2013, for the removal of three different news from 1998 and 1999 in that media institution’s internet archives, reporting the claimant had been imposed a punitive fine due to drug abuse, as the said media institution had not removed such contents within two days, the claimant filed a claim before 36th Criminal Court of Peace of Istanbul (abolished), on 18.04.2013, the court delivered a judgement stating “the said news had lost their currency, there isn’t any public interest in keeping them publicly accessible, and in the current conditions, they contain information of insulting and destructive nature as to the privacy of the claimant”, and on the grounds of this accepted the case. Upon objection to the said judgement, 2nd Criminal Court of First Instance of Istanbul ordered the revocation of this judgement on 28.05.2013, and the judgement was served to the claimant on 21.06.2013. The claimant claimed that due to rejection of his claims for the removal of the news contents regarding the abuse due to which, the claimant was imposed a punitive fine, from the websites, by the judicial authorities, his rights that are secured under Articles 12, 17, 20, 25, 26, 27 and 32 of the Constitution, had been violated.[2]

The Court decided that there should be a balance between the right to reputation and freedom of expression and press, that the right to be forgotten becomes exercisable in the cases where a certain news is easily accessible for a long time and therefore ruins one’s reputation, that in that concrete case the news is about an offence that was committed 14 years ago and had lost its currency, that the claimant is not a political or famous figure in terms of public interest and therefore, as it is evident that the said news that is easily accessible through internet ruins the reputation of the claimant, the principle of protection of the right to reputation is violated.[3]

As it is evident in the Decision by the Constitutional Court, the case regarding the right to be forgotten is concluded by considering the following criteria: regardless of whether the news is true or not; the time elapsed after the news is reported, whether the news has lost its currency, whether there is public interest in keeping the news accessible or not, whether the news is about a public figure, a politician or a celebrity, and whether the freedom of expression, by keeping the news accessible, violates the right to reputation.

An individual may demand the removal of news regarding itself from internet environment, even in the cases where such individual is sentenced due to an offence and such sentence is executed.  Moreover, not only those individuals who are currently being judged and/or has already been sentenced, but also those individuals who have been injured due to an offence may demand the removal of their information, on the basis of this right that arises from that their identity information is also reported in the news. Thus, individuals’ right to privacy will be protected and any news that causes denouncement of an individual as a criminal after the news loses its currency, even in the cases where such individuals served their time before the public opinion.

To conclude, the right to be forgotten has emerged as a reflection of protection of right to privacy and the right to protection of personal data, and has been officially recognized through the decision by the European Court of Justice. To exercise the right to be forgotten in our country, it is enough that news has lost its currency, however, the news should be of a nature that ruins the individual’s reputation due to the disclosure of identity.

 

[1] Judgement of European Court of Justice concerning Google Case, on 13.05.2014.

[2] Press Release No. BB 37/16 on 24.08.2016 on N.B.B. Case concerning the Right to be forgotten

[3] Plenary Decision by the Constitutional Court, on 03.03.2016, concerning the Application No. 2013/5653.