What is the Right to Be Forgotten on the Internet and How Is It Exercised? (In Türkiye)

A) The Internet Does Not Forget, but the Law Can Make It Forget In today’s world, internet content has the potential to exist globally forever unless removed. Therefore, without external intervention, the internet does not forget. If you ever wish to have your information deleted from the internet, you may apply to those operating the site/application or those managing the servers hosting the data to request the removal of the content and to be forgotten. However, when your request is rejected (which is most often the case), you will have only one path remaining: "Initiating Legal Proceedings."

B) What is the Right to Be Forgotten? It is possible for individuals to have painful or embarrassing experiences in their past that they would not want others to remember, or even wish to remember themselves. The law must provide individuals with tools that can make these past experiences forgotten, at least in the external world. The Constitutional Court states the following regarding the matter: “…it is clear that the state has a responsibility to provide the individual with the opportunity to ‘turn over a new leaf’ by preventing others from learning about what they experienced in the past.”[1]

An American Supreme Court decision from 1931, which I find more poetic, states: “Even the thief on the cross was permitted to repent in his last moments. We believe that the publication by defendants of the unpleasant incidents of plaintiff’s past life, after she had reformed, when coupled with her true name, was not justified by any standard of morals or ethics known to us, and was a direct invasion of her inalienable right…”[2]

What was referred to as an "inalienable right" in the 1931 decision is the right to a "happy and dignified life," which reflects Locke's natural law doctrine in the US Constitution. The preamble of our Constitution also mentions that citizens have the right to lead a dignified life. Being unable to be forgotten deprives a person of this right to a dignified life. Therefore, the right to be forgotten is, first and foremost, a personal right that an individual possesses in order to lead a dignified life. The right to be forgotten is also linked to rights regarding honor and reputation, as well as personal data.

I would like to point out a very important distinction here. Internet content subject to the right to be forgotten is not unlawful in its essence. Had this content been unlawful, it could have been removed on the very first day of publication. However, since this is not the case, it can only be evaluated at the point of "being forgotten." Therefore, content subject to the right to be forgotten is essentially lawful and has been published for a long time; however, it exists in situations where freedom of the press and expression—which initially ensured its lawfulness—becomes legally unprotectable over time against the applicant’s personal rights.

C) How Many Years Does It Take to Be Forgotten? As mentioned above, content subject to the right to be forgotten is fundamentally lawful; however, its continued publication after a certain period becomes unsustainable in terms of lawfulness against the person’s right to a dignified life, honor, reputation, and rights based on personal data. Therefore, it is not possible to specify a fixed period in advance.

For example, the Court of Cassation stated in a decision that a lawful news report loses its element of currency nine years after the acquittal decision rendered regarding the event, thereby invoking the right to be forgotten.[3] In another decision evaluating the conflict between freedom of the press and the right to be forgotten, the Court of Cassation ruled that a news report regarding an investigation lost its currency following a decision of non-prosecution (nolle prosequi).[4]

D) How Is the Right to Be Forgotten Exercised?

1) Law No. 5651 No Longer Serves a Purpose in This Regard The annulment decision of the Constitutional Court, which effectively stripped Law No. 5651, completely annulled Article 9 of the law. In its pre-annulment form, the article had undergone major amendments regarding the right to be forgotten and even regulated decisions on de-linking names for search engines. However, this regulation was annulled. Beyond this, the inability to be forgotten—which is fundamentally a violation of personal rights—was left unaddressed under Law No. 5651, as Article 9 regarding personal rights was annulled.

In this regard, the only remaining option is to file an application to the Cyber Security Authority under Article 9/A by asserting the "connection between privacy of personal life, personal data, and the right to be forgotten."[5] However, relying on this norm—which is intended for emergencies under Article 9/A—regarding the right to be forgotten would not be prudent.

2) You Can Request It from the Relevant Parties You can inform the parties publishing your content that you wish to be forgotten and demand its removal; you may even issue a formal notice via a notary public. You can also submit applications regarding the right to be forgotten to search engines like Google, which have established dedicated platforms to accept such requests. I would like to note that your chances of success will be higher in applications made to search engines. However, in both methods, if the content you wish to be forgotten is subject to freedom of expression and the press, reaching a resolution solely through the warning/request method is quite difficult.

3) Filing a Right to Be Forgotten Lawsuit When you cannot achieve a positive outcome from your requests/warnings, the most important step you can take to exercise your right to be forgotten is to file a lawsuit demanding the removal and blocking of access to the relevant content. At this point, based on the provisions of the Turkish Civil Code (TMK), a lawsuit must be filed before the Civil Court of First Instance demanding the termination of the unlawful attack on personal rights.

4) You Can Apply to the Personal Data Protection Board Regarding Search Engines Another action that can be taken regarding the right to be forgotten is to apply to the Board solely within the framework of personal data legislation on the grounds that "the reasons requiring processing have ceased to exist," and obtain a decision for removal. Since failure to comply with a Board decision entails an administrative fine, the relevant party will most likely fulfill the requirements of the decision.

The biggest issue here is that the Board does not accept applications raised on the grounds of freedom of the press and freedom of expression. The Board has only recognized search engines as data controllers and their activities as data processing activities, issuing decisions on "de-indexing name-surname" queries concerning them. In its decision numbered 2023/2185, it stated that freedom of expression and the press are exempted under the law and therefore rejected applications made on these grounds.

E) Should the Right to Be Forgotten Return to Law No. 5651? Or Should Jurisdiction Remain with the Civil Judiciary? I am not in favor of reintroducing a provision to Law No. 5651 regarding the de-linking of names—that is, a decision preventing relevant news/content from appearing when a "first name-last name" is entered into a Google search. Nor am I in favor of leaving such an application to the Personal Data Protection Board. Specifically, appealing Board decisions to the administrative judiciary is problematic, as it would lead to an administrative judge resolving legal disputes concerning personal rights.

I also believe that requests based on the "right to be forgotten" aimed at completely removing content from the internet or blocking access should not be made under Law No. 5651, and that an adversarial civil litigation process would be the correct approach. This is because criminal judgeships of the peace may be competent for explicit illegalities requiring urgent intervention. However, no such situation exists regarding the right to be forgotten, as the content in question has already been published for years. Therefore, in accordance with the right to a fair trial, it is logical for civil courts to hold jurisdiction here. Nevertheless, I must also point out that civil courts have developed a practice of refraining from issuing interim injunctions requesting the blocking of access, which, in my view, is erroneous.

[1] Constitutional Court, N.B.B. Application, Application No: 2013/5653

[2] Alp Öztekin, Türk İnternet Hukuku, Seçkin, Ankara, 2023, p. 899

[3] 19th Criminal Chamber 2018/7735 E. 2018/13080 K.

[4] 19th Criminal Chamber 2019/18935 E. 2019/6882 K.

[5] I am of the opinion that this norm should be interpreted narrowly and applied solely to the privacy of personal life, excluding general personal data.