Legal Journal

The Right to Be Forgotten With Respect to Personal Data

As it is possible to make any kind of data publicly available on the internet today, ensuring privacy of personal data has become a challenging issue. Personal data is sometimes made available to other users through disclosure or permission for disclosure by the individual himself/herself, or sometimes without the consent of the individual. The right to be forgotten emerged as a result of the increasing importance of the erasure and rectification of individuals’ data history in the digital world, especially on the internet, with the developing digital technology.

With respect to collection, use and storage of personal data; not only social media networks, e-commerce and shopping websites, but also banks and professional associations have become major data collectors. As a result, acquisition of personal data by third parties has been much easier and dangerous today.

Despite the increasing use of the internet and digital networks, it is observed that solutions to make users feel secure about whether data collected over the internet is being protected have not yet been implemented. After data sharing, with the online opportunity that the internet provides the individual with (which might be a purchase of service, arbitrary or free of charge use), most of the time data privacy becomes of secondary importance even when the data shared is of sensitive nature. “Collective” permissions obtained from data subjects with respect to the storage period, processing and transfer of the collected data to different agents have become wide open to abuse today and it is always possible to claim invalidity of such within the scope of general processing theory. At this point it is important to state that the “purpose limitation” principle adopted by Continental Europe, especially with regard to data processing, is a significant protection tool for data security. Data sharing and data circulation is of great importance and should not be disregarded. Considering the extensive use of the internet today especially among children (younger than 18), we are of the opinion that any personal information, photos and remarks shared by children on the internet, even if disclosed voluntarily, should be erasable upon request under all circumstances, requests to remove such data should be assessed unconditionally.     

It is necessary to support the right to be forgotten with legal and administrative arrangements so that it will not be an empty shell, to set data protection principles on digital internet platforms based on awareness of data subjects’ rights and to discuss how they can be implemented. Mechanisms to ensure reliability and control mechanisms where needed should be established in the light of these principles.

Otherwise, unconditional circulation of personal data among internet agents without being subject to any rules or limitations may result in disputes not only between third parties and the data subject later on but also between relevant social Networks, e-commerce, shopping website owners, service provider internet companies and the data subject.

It is important to establish mechanisms to protect data subjects’ private – personal data taking the following points into consideration:

• While collecting data, the data subject should be informed of the purpose of collection, period and location of data storage.
• It should be ensured that the data subject can monitor and even have control over the data transfer.
• Security conditions for storage of data collected by relevant internet agents should be met.
• Technical methods should be developed to automatically remove content from third party websites providing a link or referring to the web site in question, after such data is removed from the website where it was first shared.
• Where data is used beyond its purpose or disclosed to unintended persons, the data subjects should be warned promptly for protection of their rights; necessary measures should be taken, the data subject should be informed about who to resort to for data protection in such case.

Briefly, it is necessary to build the legal and technical infrastructure to enable the use of this right.

The basis of the right to be forgotten is "the right to privacy". However, as the right to privacy is closely related to protection of data that is not publicly available, the connection of the right to be forgotten with the right to privacy and data privacy has been questioned from time to time. On the one hand, it is argued that an individual should have unconditional control over any personal information. On the other hand, the right to be forgotten is also interpreted as an effort to prevent access to a piece of information that has become publicly available and retract such information within the scope of the right to privacy. As privacy and data protection, prevention of expressing opinion relating to a person or subject may be construed as censorship, it is sometimes challenging to achieve an appropriate balance between these concepts.   

The right to be forgotten turns out to be a significant tool when an individual or an organization desires to gain control over the comments and remarks uttered about them by third parties. An individual or an organization may request that, besides personal data, any unfavorable content relating to them be removed from the internet. What is important at this point is to determine whether such comments and remarks about individuals and organizations have appeared as a result of a defamation campaign or whether they contain incomplete or incorrect information. If otherwise, it can be stated that the use of the right to be forgotten would limit the freedom of access to information or freedom of information of third parties.     

Today, internet is one of the most significant political agents. It is of paramount importance to set the norms and mechanisms required for the use of this right which has come into the picture as a result of the internet but whose legal scope and character has not yet been determined. With respect to this right that occupies an important position within the rights and freedoms of individuals, developing and ever changing technology forces all countries to take solid steps and set new norms regarding the issue. 

Av. Beril Çelebi Cem