Turkey: Right To Be Forgotten And Freedom Of Expression

Internet, with over 25 years on the way of its popularisation, has presented the legal world a new term: "Right to be Forgotten". Especially with the growth of social media and its occupation on our daily lives, individuals start from younger ages sharing personal information on online platforms. They start with a limited group at first; and expand their information sharing network as they grow up. In this process, we find out step by step that information loses its confidentiality, even if it is shared with just one person. We also witness that information shared only with a limited group is sometimes exposed to public with bad intentions of receiving parties. Even more, any kind of personal data can be disclosed to public and published on Web pages as a result of hacking activities.

On the other hand, public information of individuals is also published on the Internet in which case the effect of Internet publishing should not be ruled out. True and correct information about people may be gathered in the same pool with lies, defamations, blackmail and untrue information used for discrediting a person. Personal data, news and information about individuals may even be collected in databases and sold for profit. Furthermore, former criminal investigation information1 or personal photos are specially stored and published on the Internet in contravention of the legal principle that "personal data is under protection and cannot be published without its owner's consent". 2

Scope of Internet publication is limited with personal rights as well as data protection rules. It should be underlined that any kind of information and statement about a person is an inseparable part of the "personal rights" which are subject to Turkish Civil Code. "Personal rights are not defined and the area of their protection is not clarified under Turkish Law. Thus, clarification and drawing the lines of personal rights is a subject of practice; meaning it is a subject of jurisdiction. It is accepted that, personal values are determined as physical, emotional and social values and they consist a person's professional identity, pride, dignity, freedom, physical and emotional integrity, health, race, language and nationality."3

We choose to limit our article to personal expressions which are shared by the data subject itself or other people. An individual's right to be forgotten; asking for erasing of information and statements shared on Internet and preventing their digital transmission, comes with "protection of personal rights".

The right to withdraw permission in relation to and ask for erasure of statements, information and data related to a person's childhood, youth or adulthood; which are published by such data subject on Facebook, YouTube, Twitter, Google and similar social media platforms, shall be determined particularly in legal regulations. Above mentioned social media actors are apparently working on this issue and it seems from their preliminary preparation that their approach to right to be forgotten will be to treat it with respect.

Having said that, the right to be forgotten, which is exercised for intentionally/unintentionally shared statements about a person on Internet, cannot be fully protected before "freedom of expression". Another alternative method may be applicable if opinions and statements which are shared and written by an individual are considered as a "Work". In such case, that individual may always prevent digital transmission of that Work as the "Author" and use its authorship rights arising from Law on Intellectual and Artistic Works.

There is also information, statements and opinions found on Internet which cannot be considered as a Work or which are written by third parties. It is not easy to intervene in and remove other people's opinions and statements found on Internet since a person's right to intervene in other people's statements is less protected. Nevertheless, if those statements are considered as defamation or violate personal rights, a person may always initiate legal actions and ask for preliminary cautions. In light of this information; when the right to be forgotten competes and contradicts with freedom of expression; it should be evaluated if there is a criminal act against or any damages incurred by such individual, and if the answer is yes, the individual's right to be forgotten should be protected. This way access to relevant information shall be suspended, and eventually at the end of the dispute, the information may be erased from Internet.

If the opinions/statements do not cause any damage and do not constitute a criminal offense, then the right to interfere with such content shall be limited.

We may say that statements of third parties which do not have any criminal element will benefit from fundamental principles of freedom of speech and freedom of mass communication. In this manner, when a statement is published by a third person and (i) right to inform public or (ii) right to criticise and review is used or (iii) intellectual arguments are disclosed within the scope of creating a work; then there will be some pre-conditions to be examined in order to interfere with such content.

We have to mention that, statements released on Internet within scope of freedom of speech are also subject to some restrictions. For example, protection of personal rights; name; photos and writings; and personal life of an individual as well as protection of public order may always be deemed as legal arguments to ask for removal of content. Exercise of this right shall change depending whether the requesting party is a regular citizen or a public figure such as politicians or artists. Boundaries for protecting a regular citizen will be broader compared to protection of a politician.

In conclusion, there will be examples where the right to be forgotten is exercised without a question whereas in some cases it will compete with freedom of expression. Limits of these two rights should be examined in the way of reconciling of competing rights. The limits of right to be forgotten are indicated in the Directive as; freedom of speech, public interest, public health, right to research historical, academic and statistical issues.4 

Footnotes

1  For example according to established practice of Turkish Law; if a person is called a Thief even if such person was convicted of robbery, it would still be accepted as an insult to that person because there is no "public interest" in such addressing/statement.

2 Recording of personal data ARTICLE 135 of Turkish Criminal Code-(1) Any person who unlawfully records the personal data (Amended: 6526-21.2.2014/a.3) is punished with imprisonment from six months to three years. (2) Any person who records the political, philosophical or religious concepts of individuals, or personal information relating to their racial origins, ethical tendencies, health conditions or connections with syndicates is punished according to the provisions of the above subsection.

3 Supreme Court Assembly of Civil Chambers, Decision No 2009/4-120 File No, 2009/193 No. Decision dated 13.5.2015.

4 Règlement Du Parlement Européen Et Du Conseil, 2012/0011 (COD)

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