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Key Decision by European Court of Justice on Right to be Forgotten

08 Jun 2021
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Court of Justice of the European Union (“ECOJ”), has recently decided that the regional scope of application of right to be forgotten by search engines should be limited within the borders of European Union member states.

The French Data Protection Authority (“CNIL”), in its decision reached on 10 March 2016, have imposed an administrative fine on Google Inc. in the amount of EUR 100,000. While the decision was taken upon the search engine Google considered as the data controller, despite the CNIL’s warnings in 2015, Google did not apply the right to be forgotten in search engine results. Google took the decision to appeal and brought the case before the French Council of State (“Council of State”), and claimed that it should only be implemented when accessing the search engine through member states only. The Council of State, on the other hand, found it appropriate to bring the file to the attention of the European Union Court of Justice (“ABAD”) for their intervene.

In the light of these investigations on the search engine, Google made an official statement and claimed that right to be forgotten brings high risk of manipulation by authoritarian regimes to violate human rights such as right to information and freedom of speech.

Pursuant to the examination process completed, ECOJ ruled that right to be forgotten must be regarded and applied within the member states and should be avoided outside of the member states due to risks of being manipulated by foreign countries with regards to human rights violation concerns. ECOJ has added that rights regarding the protection of personal data are not absolute and such rights do not override the rights such as freedom of speech or right to information.

The right to be forgotten first came into the spotlight in 2014, when a Spanish citizen sent a request to Google to delete outdated data about him and this request was brought before the ECOJ in which ECOJ favored the ruling on behalf of the applicant.

Right to be forgotten has been stipulated in Article 17 of General Data Protection Regulation (“GDPR”) and it allows real persons to request his/her personal data to be deleted or not displayed within the earliest convenience if the following conditions are met:

  • the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
  • the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;
  • the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2);
  • the personal data have been unlawfully processed;
  • the personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject; and
  • the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

The claims of the data subjects for the right to be forgotten are not applied in the presence of the following exceptional situations despite the existence of the above conditions:

  • for exercising the right of freedom of expression and information;
  • for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
  • for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);
  • for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or
  • for the establishment, exercise or defense of legal claims

Although the right to be forgotten is not a concept foreseen in the Personal Data Protection Law numbered 6698 (“KVKK”) and any other legislations within Turkey, concepts that can be considered as the right to be forgotten in the decisions taken regarding the files brought before the Supreme Court and the Constitutional Court have emerged in the past. As per the decision taken by the of General Assembly of Civil Chambers of Supreme Court in 2015, the full name of the victim of sexual harassment was written as an example in an academic law book, the plaintiff requested her name to be excluded from the book and the decision of related authority of the Supreme Court has ruled that the decision of the court of first instance should be reversed in the favor of the plaintiff.

On a separate case, a personal claim made before the Constitutional Court. The plaintiff requested that the news on his criminal record and usage of drugs that can be found in search engine from the year of 1998 are no longer relevant and should be deleted, the Constitutional Court has ruled in the favor of the plaintiff and found it appropriate to delete such news.

The right to be forgotten is one of the most important rights granted to individuals in the new digital World order, and real persons can protect themselves against the threat of damage with the use of the right to be forgotten. As a matter of fact, with the use of this right, data processing without a legal basis may be decreased and the personal data processing activities that are no longer compatible with the purpose of data collection may become possible.

The decision of ECOJ to restrict the right to be forgotten in a regional sense can be interpreted appropriately, especially considering basic human rights such as access to information and freedom of expression. In the end, right to be forgotten is not an absolute right and as stated in the explanation regarding the decision, it should be applied within the framework of the proportionality principle and should not complicate the exercise of other fundamental rights.