Summary
The Turkish Constitutional Court ruled in a recent judgment that every individual is entitled to claim “the Right to be forgotten” as per the Constitutional rights of “Personal inviolability, corporeal and spiritual existence of the individual (right of fame and honor)” and “the protection of personal data.”
History
The decision was issued upon an individual application by which the applicant claimed that the rejection of the request of removal of content by the First Instance Court was a violation of the right of fame and honor.
In the history of case, the applicant sent a cease and desist letter to a Media Institution in 2013 requesting the removal of 3 news dated 1998 and 1999 from the internet archive of the Institution. The applicant claimed that the past news in the archive which were related to his/her conviction due to drug use were violating the right of privacy as well as the right of fame and honor.
Upon the rejection of the request by the Media Institution, the applicant took the matter before the Court of Peace and requested the court to issue a take-down order for the removal of the content.
The Court of Peace accepted the applicant’s request on 22.04.2013 with the motivation that “the news subject to removal request were outdated and no longer newsworthy, accordingly there was no public interest for keeping the news”. However the decision of the court of peace was reversed by the Penal Court of First Instance upon the objection of the defendant, i.e. the Media Institute.
The applicant filed an individual application before the Constitutional Court and claimed the violation of privacy as well as the right of fame and honor among other rights.
Decision
The Constitutional Court determined the essence of the case to be striking the balance between the right of fame and honor and the freedom of press/expression. The Court stated that the proportion between these two rights has become unbalanced in favor of the freedom of press/ expression since the Internet has created an ecosystem where the individuals are technically not provided with the opportunity to be forgotten in relation to the news regarding their personality. The court concluded that said rights can be balanced only by introducing the Right To Be Forgotten to individuals under the Constitutional “right of fame and honor” and “right to request the protection of the personal data”.
The subject decision has a crucial importance in terms of being the first decision where the right to be forgotten is discussed thoroughly at the Constitute Court level.
Update
1) Legal reasoning providing for the basis of the judgement subject to this article was that
Turkish Constitution Article 17/1 must be balanced with Arts 26 and 28 in accordance with the principle of proportionality.
2) It is true that there is no indication of right to be forgotten in Turkish Data Protection Law (“TDPL”) however, this legal gap seems to be fulfilled by case law.
Furthermore, it can be interpreted that the right to be forgotten is accepted in Turkish Data Protection Law, with the general purpose of the code and Article 7 TDPL in mind.
Pursuant to Article 7 TDPL, such data being lawfully processed can be erased, destroyed or anonymised by data controller upon the request of data subject where the legitimate reasons for processing no longer exist.
3) See below the relevant decision made by Personal Data Protection Board of Turkey regarding the right to be forgotten:
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