Right to be Forgotten

The "right to be forgotten" is a concept that allows individuals to request the removal or deletion of personal data and content about them from digital archives, particularly when such information is no longer relevant, accurate, or is causing harm. It has gained prominence with the advancement of technology and the widespread use of the internet, which has made it easier to collect, process, and disseminate personal information. The core idea behind this right is to enable individuals to shape their future freely, manage their personal data, and prevent outdated or harmful information from being used against them.

The roots of the right to be forgotten can be traced to concepts like "droit à l'oubli" in French law and "diritto all'oblio" in Italian law, which initially pertained more to the right to have past criminal records or state-held information erased after a certain period. However, with the rise of information technology, its scope has expanded.

Significant developments in the protection of personal data in the 20th century, driven by concerns over computer technology, laid the groundwork for the right to be forgotten. It is often considered an extension or a modern reinterpretation of the right to the protection of personal data.

One of the first legislative efforts related to the right to be forgotten emerged in France in 2010. At the European Union (EU) level, discussions gained momentum with the proposed revision of the Data Protection Directive (95/46/EC). A landmark moment was the Court of Justice of the European Union (CJEU) ruling in the Google Spain case on May 13, 2014, which established a legal basis for this right. Subsequently, the right to be forgotten (also referred to as the right to erasure) was explicitly enshrined in the EU's General Data Protection Regulation (GDPR).

The right to be forgotten grants individuals the ability to request the deletion of their personal data and content from the internet, especially if it is disturbing or they no longer want it to be publicly available. This can include information provided consensually by the individual or data created, processed, and disseminated by third parties without their direct knowledge. The right to make such a request generally belongs to the data subject themselves.

This right allows individuals to "open a new page," "erase traces of their past in a way that cannot be brought back," and "make a new beginning". It permits individuals to demand the deletion of their personal data, even if the content is accurate, under certain conditions, such as the data being incorrect, inadequate, irrelevant, or excessive for the purpose for which it was processed.

The Turkish Court of Cassation General Assembly on Civil Chambers (YHGK) defined the right to be forgotten as "the right to demand that, in the absence of an overriding public interest, negative events experienced in the past that are in the digital memory be forgotten after a certain period, and that personal data that one does not want others to know be deleted and its dissemination prevented". The YHGK also noted that this right should be recognized not only for data in the digital environment but also for personal data kept in physical environments that are easily accessible to the public.

The right to be forgotten is closely intertwined with several fundamental rights and freedoms:

• Privacy and Personal Data Protection: Personal data is closely linked to human rights in terms of protecting the privacy of private life. The recognition of the right to be forgotten helps protect an individual's privacy. The main objective of personal data protection is to safeguard the right to privacy. The right to be forgotten and the retention of personal data form the foundation of personal data protection.
• Freedom of Expression, Right to Information, and Freedom of the Press: The right to be forgotten has the potential to conflict with the public's right to receive news, freedom of expression, and freedom of the press. Therefore, a balance must be struck between these rights when evaluating requests for the right to be forgotten. For an internet news item to be removed under the right to be forgotten, various factors such as the content of the publication, the duration it has been published, its loss of currency, whether it is historical data, its contribution to the public interest, and the position of the person concerned must be considered. The right to be forgotten is not an absolute right, and a balancing act must be performed in each specific case between the conflicting rights.

• The protection of personal data is addressed in various international documents: the Universal Declaration of Human Rights (Article 12), the UN International Covenant on Civil and Political Rights (Article 17), the Council of Europe's Convention 108, the European Convention on Human Rights (ECHR, within the scope of Article 8), and the EU's Directive 95/46/EC.
• The right to be forgotten is explicitly regulated under Article 17 of the EU's General Data Protection Regulation (GDPR) as the "right to erasure ('right to be forgotten')".
• The CJEU's Google Spain ruling of May 13, 2014 (C-131/12), played a crucial role in the development of the right to be forgotten. The CJEU ruled that individuals can, under certain conditions (such as the information being inaccurate, inadequate, irrelevant, or excessive), request search engine operators to remove links related to their personal data from search results. The ruling emphasized that the right to be forgotten is not absolute and that a balance must be struck between the right to privacy and the public's right to access information.
• The European Court of Human Rights (ECtHR) has also referred to the term "right to be forgotten" in some of its decisions, particularly in dissenting opinions or in the context of applicants' claims. However, it generally resolves alleged violations by balancing Article 8 (right to respect for private life) and Article 10 (freedom of expression) of the ECHR.

• A 2010 constitutional amendment added a clause to Article 20 of the Constitution, granting constitutional protection to the right to the protection of personal data. This provision includes rights such as being informed about one's personal data, accessing this data, and requesting its correction or deletion.
• Law No. 6698 on the Protection of Personal Data (KVKK) entered into force on April 7, 2016. While the KVKK does not explicitly include a provision titled "the right to be forgotten," Articles 7 and 11 regulate the deletion, destruction, or anonymization of personal data. These provisions are expected to yield results similar to the right to be forgotten.
• The Turkish Court of Cassation General Assembly on Civil Chambers' decision of June 17, 2015 (E. 2014/4-56, K. 2015/1679) was a first in recognizing the right to be forgotten in Turkish law. In this decision, the YHGK, referencing the CJEU's Google Spain ruling and defining the right to be forgotten, stated that this right could apply not only to data in the digital environment but also to data in physical environments easily accessible to the public.
• The Turkish Constitutional Court (AYM) also addressed the right to be forgotten in its individual application decision of March 3, 2016 (No. 2013/5653). The AYM noted that news archives on the internet could cause individuals' past mistakes to constantly reappear, thereby disturbing the balance between freedom of the press and the protection of honor and reputation, and that the right to be forgotten could re-establish this balance. The AYM stated that although there is no direct provision in the Constitution regulating the right to be forgotten, provisions such as the state's fundamental aims and duties, the right to the development of a person's material and spiritual existence, and the right to request the deletion of personal data provide an opportunity to recognize the right to be forgotten.

The right to be forgotten faces several criticisms and challenges:

• Vagueness in Definition and Scope: The lack of clarity regarding the scope of the right and the types of data to which it applies is a point of criticism.
• Implementation Difficulties: Determining geographical boundaries for its application remains contentious. Whether removing information from a specific country's domain is sufficient or if global blocking is necessary is a significant question.
• Role of Search Engines: The responsibility placed on search engines to evaluate and decide on requests is criticized for giving these commercial entities power to limit fundamental rights like freedom of expression and for concerns about their objectivity. This process also imposes additional costs and workloads on search engines.
• Technological Limitations: Whether it is technically possible to completely erase content from the internet is debatable. Copies of deleted data may persist on various platforms or be accessible through archive sites, questioning the effectiveness of the right to be forgotten.
• Balancing with Other Rights: The necessity of balancing it with values such as freedom of expression, freedom of the press, and the public's right to access information complicates its application.

The right to be forgotten is viewed as an important tool for individuals to protect their privacy and reputation in the digital age, but challenges in its implementation and potential conflicts with other fundamental rights mean that discussions around it are ongoing.