A Turkish court recently accepted the existence of the Right to be Forgotten for the first time (2014/4-56 E, and 2015/1679 K, dated 17 June 2015). The Assembly of Civil Chambers of the Court of Appeal held that the right includes digital data, as well as non-digital personal data kept in publically accessible mediums. The digital aspect of this decision adopts and applies a similar scope as was granted by the Court of Justice of the European Union in its decision about Google.

The case at hand involved a claim that the personal rights of a sexual assault victim had been infringed. A criminal case was filed regarding the assault and the defendant was found guilty. During the hearings, the claimant/victim gave explicit descriptions of the assault, which were included in the decision's text. After the proceedings, an academic book was published, containing certain decisions by the Court of Appeal, including the case at hand. The names of the claimant/victim and defendant were not censored in the book. Accordingly, the claimant initiated the case at hand, seeking non-pecuniary damages for violation of her personal rights.

The first instance court partially accepted the case, holding that exposing the claimant's name would not benefit the publisher. The parties appealed this decision to the Court of Appeal.

The Court of Appeal specifically considered Article 13 of Charter of Fundamental Rights of the European Union, which states that "The arts and scientific research shall be free of constraint. Academic freedom shall be respected." The Court of Appeal held that in these circumstances, academic freedom should be preferred over personal rights. Therefore, the Court of Appeal ruled that no infringement of personal rights had occurred.

However, the first instance court insisted on its previous ruling, meaning the case was referred to the General Assembly of Civil Chambers ("Assembly"). The Assembly noted the necessity of creating a fair balance between academic or artistic freedom and fundamental personal rights. The Assembly held in this context that the right to privacy, a fundamental personal right, should be preserved.

The Assembly adopted and applied the same scope for the digital aspects of the Right to be Forgotten as was determined by the Court of Justice of the European Union in the Google decision. However, the Assembly also held that the right to be forgotten applies to non-digital personal data which is stored in mediums which are easily accessible by the public.

Accordingly, the Assembly held that academic publications should not expose personal data unless it is in the public's best interests, due to being of great public importance or high interest. It held that the case at hand failed to meet this threshold and accordingly the claimant is entitled to non-pecuniary damages.

General Assembly of Civil Chambers, 2014/4-56 E., 2015/1679 K. dated 17 June 2015

Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.

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