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THE RIGHT TO REARRANGE ONE’S PAST OR BEGIN A NEW CHAPTER FOR ONESELF IN THE FUTURE
- General Issues Related to the Right to Be Forgotten and Its Historical Development
Inventions and technological developments in the internet environment nowadays have facilitated the access to information and data, and with the intensive introduction of the Internet into our lives, the need for legal norms to regulate the behavior of people in the Internet environment has also arisen. The Internet has become used for both good and bad purposes, and it has also begun to be used as a tool, sometimes for propaganda and sometimes for committing crimes. In addition to the many positive aspects that the Internet environment has added to our lives, various negative effects have also emerged on a social and individual basis. The influence of the Internet in our lives has been so enormous that the Internet has not only created its own jargon, but has even spawned a different type of addiction called internet addiction, which is considered a mental disorder. On the other hand, the internet environment has become an environment where everyone’s personal data, including children, adolescents and adults, is easily shared by themselves or others, recorded for a long time, modified, subjected to all kinds of processing and easily accessible through search engines. Personal data that is shared on the Internet and damages a person’s reputation stays on the internet for a long time without the consent of the person concerned, is sometimes used against people, prevents a person from making plans for the future, negatively affects their private life and business life, deprives a person of the right to self-development and realization. In such a case, people who want to erase their past have become demanding that their personal data be removed from the internet environment and that access to such data be blocked. The first dispute involving the request to remove personal data from the internet environment has been raised in Spain. Mario Costeja González, a Spanish citizen, wrote his name into the Google search engine, and saw that the newspaper La Vanguardia had information on the fact that he had to sell his property in 1998 on two different dated pages because he could not pay his social security debts, and he applied to the Spanish Data Protection authority in 2010, demanding that the Decriminalization of the procedure regarding him had been concluded many years ago and that these news were completely groundless. The Spanish Data Protection authority has decided that publication in the newspaper is mandatory under national legislation, but that it should be removed from the Google search engine. Google has taken the matter to the Spanish Supreme National Court through an appeal, and the Supreme Court has also moved the case to the Court of Justice of the European Union The Court of Justice of the European Union, in its Decision in 2014, ruled that if the results of the search on the search engine are “invalid, incomplete, completely irrelevant or have subsequently become irrelevant”, the personal data in question should be deleted.
In recent days, requests for the right to be forgotten have also been addressed to the courts in our country and have also been the subject of judicial decisions. For example, a request to block access dated 2014 about a publication in a national newspaper in 1999 involves that a person was being punished with a judicial fine for using drugs, was rejected by the local court and the issue was brought before the Constitutional Court. The Constitutional Court ruled that the news published in 1999 was a violation of the right to the protection of honor and reputation guaranteed in the first paragraph of Article 17 of the Constitution because the news published in 1999 was also in the archive and accessible in 2014, taking into account that the news was real and not made up. In another similar iincident, the fact that the decision made by the criminal court regarding the victim who was subjected to verbal and physical harassment at work was shared as a sample decision in a law book four years after the incident and the victim’s name was mentioned in the decision was accepted by the Court of Cassation as a violation of the confidentiality of private life. It is possible to multiply examples.
- Definition of the Right to Be Forgotten
Nowadays, the fact that some of the personal data related to the past of people are constantly and easily accessible, especially in the digital environment, may lead to the conviction of the registered past of the person concerned. An individual who had news about his drug use on the news site many years ago, after getting rid of drugs as a result of treatment, wants to get rid of personal data about his drug addiction, which harms him and damages his reputation, when he identifies himself again. He wants to continue life by starting a new chapter and defining a new identity. The right to be forgotten is a right that provides this opportunity to an individual who wants to get rid of his past. Thanks to this right, a person gets rid of his past and finds the opportunity to self-realization. The ability of an individual to shape its future by getting rid of the negative effects he/she has experienced in the past also increases the quality and level of development of society. From this point of view, the “right to be forgotten” can be defined as a right that gives an individual who wants to determine his own future and identity, who is in a state of continuous development, the right to develop himself and re-determine its identity by getting rid of his/her past[1]. Thanks to this right, a person will be able to make plans for the future, regardless of the obstacles of the past, and the use of personal data against a person will be prevented. By using this right, people will be able to get rid of the effects of an unfortunate event in their past, may request that a bad event they have experienced in the past be erased from the memory of society, in other words, will be able to start a new chapter in their life. The Court of Cassation has defined the right to be forgotten as ; “the right to request that the negative events in the past contained in digital memory be forgotten after a while, unless there is a superior public interest, and to prevent the deletion and dissemination of personal data that cannot be requested to be known by others” or “a legally protected interest in preventing access to personal data which is accessible to anyone at any time about people, in the press, in written, audio/visual media or internet media, in short, on mass media; information, news or comments that have been shared about people in the past by lawful means and grounds(even if they are presented completely and accurately)”.
- The Subject Of The Right To Be Forgotten
As can be understood from the example we have given above, the subject of the right to be forgotten is the personal data of a person about its past. When a person wants to get rid of some data about its past, the right to be forgotten will give the person this opportunity. Nowadays, personal data is defined “as all kinds of information related to an identified or identifiable individual”. the personal data that a identified person has used drugs in his past, or that he has been punished for a crime that he has committed in the past, which is presented in the example above, is the kind of personal data that the person concerned, who wants to identify himself again, would like to get rid of today, which undermines the reputation of the person in question and wants to re-identify himself. If it is necessary to define personal data in a broad sense with examples; the person’s name, address, phone, picture, voice, etc. and in addition to that; the data relating to the person’s lifestyle, religious beliefs, sexual preferences or ethnic origin, criminal history, political leanings and personal data on private activity, economic and financial life of a person’s assets, and accounts owned shares, debts, credit cards, data, data on disease and health information, biometric data, in the field of Informatics e-mail and social media accounts on data that contains personal data can be expressed as the political the political preferences of the people. However, it does not seem possible to express all personal data by counting them.
- The Characteristics of the Personal Data that are the Subject of the Right to Be Forgotten
Personal data that is the subject of the right to be forgotten must be a personal data that has been recorded, shared and processed digitally in the past, must be accurate data in terms of data content and must be processed in accordance with the law. Data whose subject constitutes a crime, for example, containing insults or violating the privacy of private life (intimate photos or video images), data contrary to the truth, the subject of which constitutes a crime, will not constitute the subject of the right to be forgotten. The legal remedies to be applied in the case of the processing of such data vary. In order to claim the violation of the right to be forgotten, enough time must pass since the sharing or processing activity, the right to freedom of the press, the right to receive news etc. the public interest must be disappercised in the sharing of personal data. There is no valid criterion for determining the time gap, it should be determined separately according to the characteristics of each even. The data should lose its relevance or importance after a certain period of time has elapsed after the sharing or processing of personal data.
- The Value Protected by the Right to be Forgotten
Considering the basis of the right to be forgotten and the value it protects, it is seen that the right is based on rights such as the right to privacy of private life, the right to personality, the right to develop a person’s material and spiritual existence. The right to be forgotten allows the creation of conditions that allow a person to self-realization. An individual who changes its political identity or lifestyle and wants to redesign itself with a different identity can benefit from this right, as well as find the opportunity to express that he/she is free from its past mistakes with this right and regain its reputation again.
- Protection of the Right to be Forgotten Outside the Digital Environment
Personal data may have been processed in analog media in newspapers, magazines, etc. printed publications, archives and official documents in the past, as well as processed in digital media. Sometimes even the personal data recorded in the analog period are scanned and transferred to digital media and computer media, as in the transfer of newspaper archives to computer media, and are easily shared today. In the period that called the analog period before the use of computers and the Internet, especially after the execution of the sentences of former convicts, the constant reference with the crime they committed prevent individuals who want to determine their own future and improve themselves, and cause individuals to be stigmatized and sentenced to their past. Nowadays, the easy storage of personal data belonging to a person’s past in a computer environment and easy sharing via search engines and social networks over the Internet allows events to be constantly kept on the agenda that cast a shadow on the individual’s dignity and reputation. Computer and the use of the Internet in the digital era due to the fact that a lot of personal data is constantly stored and easily accessible, people who want to get rid of the bad effects of the past, by contacting content providers or hosting providers on the website or data controllers such as Google, which manages search engines, request blocking access to their personal data or removal or erasure of their data.
- Criteria for the Right to be Forgotten
The issue of the conditions under which requests for the right to be forgotten will be fulfilled and the criteria that will be taken into account in applications to the courts or the Personal Data Protection Authority in case the requests are not fulfilled gains importance. The right to be forgotten is not an absolute right, but an exceptional one, that is, it should be evaluated in terms of concrete events and decided accordingly.[2] Requests for the removal of personal data, erasure and blocking of access sometimes conflict with rights and freedoms such as freedom of expression, freedom of the press, the right to obtain information, and reveal the need to make a detailed and accurate assessment, taking into account the values protected by rights. In such cases, competent institutions and courts conduct a separate examination in each concrete case. Criteria such as when personal data is shared, the social status of the person, the right of society to obtain information, freedom of expression, freedom of the press, whether there is a public interest in sharing data, the balance between personal and public interest, etc. are taken into account.
The right to be forgotten is a right that protects its importance increasing day by day in the digital age, and it is a right that allows the protection of private life regulated in Article 20 of our Constitution and the protection and development of a person’s material and spiritual existence regulated in Article 17. Thanks to this right, it is possible for a person to start a new chapter for himself, redesign himself and achieve an identity that allows him to take actions in the future in a decent way. In our article, the nature and scope of the right have been studied and the legal remedies that enable the right to be forgotten will be shared in a separate article.
[1] Sözüer , EREN , Right to be forgotten, Oniki Levha , 2017, Istanbul s.11-12
[2] Personal Data Protection Authority, Right to be forgotten (Evaluation of the Right to Be Forgotten in Search Engines)
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