Personal Data Protection Board Decision & The Right To Be Forgotten

Personal Data Protection Authority has released a public announcement regarding its Board decision dated 23.06.2020 and numbered 2020/481 about several applications requesting the names and surnames or news on various websites of media organizations to be erased within the scope of the Law on the Protection of Personal Data No. 6698 (“Law”), as well as regarding other applications requesting necessary decisions to be taken about mentioned newspaper archives.

According to the Board’s decision, these applications have been evaluated in terms of the “Right to be forgotten”.

In the context of the Right to be Forgotten, the Board has primarily expressed that individuals are entitled to request the erasure of their data according to Article 20 of the Constitution of the Republic of Turkey, which states “Everyone has the right to request the protection of his/her data. This right includes being informed of, having access to and requesting the correction and deletion of his/her data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law”. In addition, Article 4, 7, and 11 of the Law and Article 8 of the By-Law on Erasure, Destruction, or Anonymization of Personal Data have been indicated as legal grounds of the Right to be Forgotten under Turkish Law.

Considering national legislations provided above, the Board has stated that stopping data processing activity, erasure, destruction, or anonymization of personal data and removal from the index can be considered as a tool to ensure the Right to be Forgotten depending on circumstances of the concrete cases.

The Board has also referred the Article 17 of the General Data Protection Regulation, and the case of Google v. Spain, which is the critical decision expressing that personal data must be erased where the data are no longer needed for their original processing purpose, or the data subject has withdrawn his consent and there is no other legal ground for processing, or the data subject has objected and there are no overriding legitimate grounds for the processing or erasure is required to fulfill a statutory obligation under the European Union Law or the right of the Member States. As a conclusion, the European Court of Justice held that individuals have a right to request search engines to remove links to personal information in their decision.

Under the scope of abovementioned reviews, the Board has concluded relevant applications as follows:

• For the searches made by using name and surname, the right of the person to request results associated with her not to be reached is deemed as the demand for removal from the index,
• The search engines are deemed as data controller under Article 3 of the Law,
• The activities carried out by search engines are deemed as personal data processing activity,
• According to procedures and principles regarding the right of application and complaint specified under the Law, the related person shall first apply to the search engines; and if search engines reject or do not respond the data subject, related persons shall apply to the Board,
• If search engines reject or do not respond the data subject for such applications, it is possible for related persons to directly apply to the courts, at the same time with the application to the Board,
• The form of the application to be made by relevant persons and the necessary information and documents shall be determined by the search engines,
• The principles and procedures provided herein, shall be notified to the search engine operator companies, and necessary actions will be taken to ensure the proper practice of these criteria.

To decide whether the Right to be Forgotten should be granted in these type of applications, it is finally stated by the Board that a balance test shall be conducted between the fundamental rights and freedoms of the data subject and the interests that the public will obtain from the information in question, thus observing which of the competing interests prevail. For such evaluations regarding related persons’ applications within the framework of the Right to be Forgotten, the Board has provided the attached link to the decision which includes various criteria that should be taken into consideration.

Furthermore, following criteria are determined by the Board to be scrutinized primarily during the evaluation process of such complaints, and they may be updated if needed:

• Does the person have an important role in public life?

The Board has stated that there is more public interest in accessing the information of citizens who have a role in public life than ordinary citizens. Therefore, the content of the professional lives of those who play a role in public life may also include some information requiring public attention, and that the applications they will make within the scope of the Right to be Forgotten are less likely to be accepted.

On the other hand, applications concerning the personal life of the related person are more likely to be removed from the search results.

• Is the subject a child?

The principle of “Best Interest of the Child” should be taken into consideration in evaluating the applications of minors.

• Is the content accurate?

If the released content does not represent the truth, and this leads to an inaccurate impression about the related person, requesting the link to be erased which contains such information are more likely to be considered appropriate.

It is crucial to emphasize that only the fact of the accuracy of the information shall not be asserted as a ground for the refusal of the request. In the ruling of the 19th Criminal Chamber of the Supreme Court dated 05.06.2017 and numbered 2016/15510 E. 2017/5325 K. which is referred by the Board, it is stated that because the news on a website has lost its timeliness, it is no longer important that the news meets the criteria of truth and accuracy at the time of publication.

The Board has also explained that the related person should demonstrate her claim if she claims that there is incorrect information about herself.

• Is the information related to a person’s professional life?

Another criterion is whether the content is regarding the professional life or private life of the related person. Information about the private life of a person who does not play a role in public life should be considered irrelevant.

In case of professional life circumstances, it is necessary to consider whether it contains more information than it should have in terms of the content in question.

• Is the information in the search results insulting, defamatory, or slander about the related person?

If an application is lodged to the data controller regarding the removal of the links of contents containing insulting, hate speech, defamatory or degrading statements about the related person, and the data controller rejects these applications, it is stated by the Board that it would be better to initiate a proceeding before the courts.

• Does the information qualify as personal data of special nature?

According to Article 6 of the Law, personal data of special nature is determined as follows: “Personal data relating to the race, ethnic origin, political opinion, philosophical belief, religion, sect or other belief, clothing, membership to associations, foundations or trade-unions, health, sexual life, convictions and security measures, and the biometric and genetic data are deemed to be personal data of special nature.”

Personal data of special nature determined hereinabove are more likely to be removed. On the other side, when it comes to these data of public figures, it will be necessary to assess whether the public interest in accessing this information prevails over the rights of the related person.

• Is the information up to date?

The time that passes after the information is released may cause the data to become outdated. In this case, the connection to process the data may be lost. As a result, the time elapsed is a component that increases the likelihood of the acceptance of requests for removal of content.

In the Constitutional Court's decision dated 03.03.2016 and numbered 2013/5663, which is referred by the Board, the issue of timeliness is mentioned. In this decision, the Constitutional Court concluded as follows: “As of the date of application, it is clear that the news in question was related to an incident about fourteen years ago, and thus it has become outdated. For statistical and scientific purposes, no ground makes it necessary to access this information easily on the internet for the reasons stated above. In this context, it is clear that the availability of news released on the internet about the applicant, who does not have a political or media personality in terms of public interest, damages the reputation of the applicant.”

As stated in other criteria above, the evaluation of the data regarding the person who is known to the public or historical and scientific data may be different.

• Does the information obtained from search results cause prejudice about the related person?

Although it may be difficult, the claim must be demonstrable to evaluate the request.

• Does the information contained in search results pose a risk to the related person?

The Board stated that if the information obtained as a result of the search exposes the risks such as the identity of the relevant person being stolen or followed, the information may need to be removed.

• Is the information published by the related person herself?

If the information released by the related person or her explicit consent can be removed by herself from her location, such requests in this direction shall be evaluated negatively.

However, if the explicit consent granted at the first stage is not possible to withdraw later, the demand to be conveyed will be likely to be evaluated positively.

• Does the original content cover the processed data within the scope of journalism?

The source of the information and the purpose of its publication are important in the evaluation of the requests for the removal of links. Indeed, freedom of expression is the cornerstone of pluralistic and constitutional democracy.

Freedom of the press is also a fundamental right. Within the framework of these criteria, the Personal Data Protection Authority draws attention to the important role of the internet in social life, which facilitates the dissemination of news and ideas and their public access.

Accordingly, it is stated that a balance should be redressed between the right to request the protection of honor and dignity which are protected under the Constitution and freedom of the press and freedom of expression considering certain circumstances.

As a result, the Board has emphasized that cases shall be examined according to their characteristics, and different results can be reached depending on existing conditions.

• Is there a legal obligation to publish such information concerning the related person?

If certain data is required to be published by the competent authorities because of a legal obligation, and this requirement continues to be valid, this will be considered as a negative factor in evaluating the request of the person to erase search results related to her.

• Does the information relate to a criminal offense?

The Personal Data Protection Authority has stated that within the framework of this criteria, requests for deletion of search results related to relatively minor crimes over a certain period are likely to be accepted. On the other hand, it has been concluded that those who have occurred recently and those who are related to more serious crimes are less likely to be accepted.

As Verda Law & Consultancy team, we will be following the announcements released by the Personal Data Protection Authority. Full text of the announcement is available at www.kvkk.gov.tr

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The content herein is aimed at providing a general insight regarding the subject. For customized circumstances or further information, please refer to your lawyer.