1. Introduction
Human rights are defined and grounded in the concept of human dignity, which is based on the inherent value of human beings and the knowledge of the value of human potential. The activities that distinguish humans from other living beings are what constitute their value and dignity. In this context, we can assert that in the actions and decisions of the state, the individual is the end and not merely a means, and the state’s primary purpose is to create conditions that enable individuals to use their potential.
The key issue is how to establish the causal relationship between human dignity and the right to be forgotten. At this point, it is important to clarify the relationship between an individual’s identity and personality. Identity is related to who a person is or how they perceive themselves, and identity determination can either come from the individual themselves or from another person or group. When identity determination comes from others, an individual may either accept or reject the identity imposed upon them. Identity is often defined in the context of conflicting values. By asserting who they are, an individual also communicates what they are, what they believe in, and what they want, which shows that identity is an integral part of personality.
Under the right to freely develop one’s personality, an individual demands the ability to determine and shape their identity as they wish while utilizing their potential. However, certain personal data, particularly regarding an individual’s identity, may obstruct their ability to freely develop their personality and use their potential.
In a changing world, the easy and constant accessibility of certain information related to a person’s past—which they may not wish to learn about or share—can condemn an individual to their recorded history. In such cases, an individual’s development is hindered by their past. Due to an event in the past, a person may find themselves unable to escape stigmatization. The right to be forgotten allows individuals to break free from their past, enabling them to develop and redefine their identity as they wish.
2. The Importance of the Right to Be Forgotten
The right to be forgotten aims to protect individuals from the harmful effects of personal data processed in both analog and digital environments. In the digital age, the storage and sharing of personal data online can lead to the continuous presence of past events that may damage an individual’s reputation. In the analog era, this right emerged primarily for ex-convicts who, after serving their sentence, were constantly reminded of their past crimes. However, with the advent of computers and the internet, the right to be forgotten has become even more significant.
Individuals have made requests for the right to be forgotten by looking at websites, social networks, and search engine results. The personal data relevant to such requests often come from the digitization of records that were originally kept in the analog era. For instance, newspaper archives transferred to a digital platform exemplify this phenomenon. Similarly, personal data may be processed and shared on other websites, including news outlets. In these cases, individuals invoke the right to be forgotten and request that the relevant website remove the information. Search engines, for their part, do not directly publish information but link to other digital sources where the information resides. Individuals may request that search engines remove links to such information as part of their right to be forgotten.
On social networks, personal data is sometimes shared by the individuals themselves or others on their behalf, which can prompt requests for the right to be forgotten. There is also a distinction between the right to deletion of personal data, which refers to the removal of information used without specific context, and the right to be forgotten, which can be described as a distinct right concerning the deletion of personal data.
3. Scope of the Right to Be Forgotten
First and foremost, the information concerning the individual must be accurate; at least, it must be accurate at the time it was initially published and should have been disclosed in accordance with the law. Information constituting a crime, such as defamatory or false statements, cannot be the subject of the right to be forgotten. For such situations, other legal remedies are available.
A sufficient amount of time must have passed for personal interests to outweigh public interests in keeping the information accessible. There is no fixed duration for this period; it should be determined based on the specifics of each case. A sufficient period should pass for the information to lose its relevance or importance.
The right to be forgotten has been developed through case law and is largely rooted in the rights to privacy, personality, and the right to develop one’s material and spiritual well-being. Individuals seek to protect their reputation and integrity from verbal attacks, and to request respect for their private and family lives. The right to respect for private and family life imposes a positive obligation on the state to protect individuals’ reputation and integrity. An individual who requests respect for their private life and family life, as well as the protection of their reputation, may invoke the right to be forgotten as an extension of these rights. A person’s reputation and dignity depend on how others perceive and define them, which includes their identity and personality. A person is considered autonomous, with a space where they can develop freely without interference from political authorities or others. The use of past information that limits an individual’s ability to start anew and develop their personality is not protected by law. Otherwise, a person’s past could hinder their potential for positive growth and self-realization.
The right to be forgotten also stems from the protection of personal data, which is inseparable from a person’s identity and personality and is rooted in privacy and spiritual integrity. The subject of the right to be forgotten primarily concerns personal information. The extent to which such information may be shared with others depends on the boundaries of the individual’s autonomy. The individual has control over when and to what extent their personal information can be shared, and this control is referred to as informational self-determination. This right protects the individual from arbitrary processing of their data and strengthens their autonomy.
4. The Right to Be Forgotten Within the Context of Human Rights
A. The Right to Privacy and the Right to Be Forgotten
Considering that human rights are based on the protection of human dignity and potential, the question arises as to what value the right to privacy protects. A simple answer is that it protects the “inviolability of personality.” The scope of personality includes the individual’s potential, which determines the boundaries of inviolability.
The right to be forgotten can be seen as an extension of the right to privacy, as the information published initially was lawfully disclosed and legitimate at the time. However, after some time has passed, the right to be forgotten can be invoked to protect an individual’s reputation and dignity, which are part of their personality rights. When individuals demand the protection of their reputation, they request that others refrain from attacking their character. This request places a negative obligation on others, but at the same time, through the right to be forgotten, individuals assert control over their personal data and request its removal. Thus, individuals assert both their right to privacy and their right to develop their personality and identity.
In the digital age, the massive processing of personal data has placed an individual’s privacy and autonomy under threat. This has led to a growing demand for the protection of personal data, and national and international regulations have been put in place to address this need. Individuals who seek to protect their personal data are, in fact, seeking to protect their private life. The issue is not the personal data itself, but rather the protection of private life. If the fundamental principles governing personal data protection are violated, the right to privacy may be infringed. These principles, such as the data being retained for no longer than necessary, being accurate and up-to-date, and being sufficient for the intended purpose, are closely linked to the right to be forgotten.
B. Freedom of Expression and the Right to Be Forgotten
Freedom of expression inherently includes the right to receive and disseminate information. While freedom of expression facilitates the spread of information, the right to be forgotten, on the other hand, involves the request to remove such information. The conflict between these two rights raises the issue of where to draw the line and how to maintain a balance. On the one hand, there is the individual’s interest in being forgotten, and on the other hand, there may be the public’s interest in accessing and disseminating the information.
In some cases, the conflict may require a consideration of human dignity beyond mere interest. Moreover, the fact that the right to be forgotten is not an absolute right, and that freedom of expression requires case-by-case evaluation, emphasizes the need for balance.
Another significant issue is the potential conflict between the right to be forgotten and freedom of the press, which is essential in a democratic society. The press has a duty to report for the public good, and the public has the right to access information. In this context, the internet serves as a tool enabling the exercise of these freedoms.
The identity of the person invoking the right to be forgotten is important. A distinction must be made between ordinary citizens and public figures such as politicians, public officials, and others who play roles in public life. Even within public figures, a distinction should be made between politicians and other public figures. When a politician is involved, the balance between the right to be forgotten and freedom of expression or the press may favor freedom of expression. However, when it comes to public officials, the law provides more protection for their personal rights than for politicians. In cases involving public officials, the focus is on the trust placed in their public duties rather than their personal reputation.
5. Conclusion
The right to be forgotten allows individuals to request the removal of personal data related to their past and private life that may harm their reputation. This right contributes to creating the conditions necessary for an individual to develop themselves and use their potential for the benefit of humanity. A person who is not continuously reminded of their past shortcomings and is not stigmatized by them is more motivated to realize the values associated with human dignity. The right to be forgotten allows individuals to escape their immutable past and regain their reputation.
This decision has become a significant turning point in personal data protection rights in Europe and has opened up a broad discussion on the impact of the “right to be forgotten” on search engines.
Attorney Yalçın Torun
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