Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Contracts Expression
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The Constitutional Court of the Republic of Turkey recognized the existence of the “right to be forgotten”, and found that this right had been violated by the presence of a 17-year-old news article about an individual’s drug conviction on a newspaper’s internet archive. The case concerned a Turkish citizen (N.B.B.) who was convicted of drug related crimes in 1998. Three articles about this incident were published by a national newspaper between 1998 and 1999, and were subsequently included in an online archive. In 2013, N.B.B. requested that the newspaper de-index the articles, claiming that they were outdated and harmed his reputation. The case eventually reached the Constitutional Court, which held that the articles were outdated, served no public interest purpose, and that making them easily accessible online harmed N.B.B.’s reputation.
A Turkish citizen, N.B.B., was fined for drug use in 1998. Articles about this incident were published on three occasions in a national newspaper. At some point, the articles were moved to the newspaper’s web archive. Accordingly, the newspaper articles could still be accessed via an online search.
On April 2, 2013, N.B.B. sent a request to the newspaper to make the relevant content unavailable on the web archive within two days, because it allegedly damaged his honor and dignity. The newspaper did not comply and N.B.B. brought a legal claim against the newspaper.
On April 22, 2013, the Magistrate Court of Istanbul accepted N.B.B.’s request on the grounds that the articles contained information that was damaging to N.B.B.’s private life, the articles were no longer newsworthy, and there was no public interest in them remaining available. The newspaper objected, and filed an appeal. On May 28, 2013, the 2nd Chamber of the Istanbul Criminal Court revoked the decision of the Magistrate Court of Istanbul.
N.B.B. subsequently filed a claim for review to the Constitutional Court of Turkey, arguing a violation of his rights under Articles 12, 17, 20, 25, 26, 27, and 32 of the Turkish Constitution.
The Constitutional Court of the Republic of Turkey (Court) began by stating that the issue in question was whether the lower instance decision fairly balanced, on the one hand, the right to honor, the right to reputation, and the “right to be forgotten” with, on the other hand, the right to freedom of expression and freedom of the press. In doing so, the Court recognised that the removal of the content from the web archive would not only interfere with the rights to freedom of expression and freedom of the press, but also the right of individuals to receive information and ideas.
The Court explained that the “right to be forgotten” comes into question when ease of access to certain information online over a long period of time harms a person’s reputation or honor. Thus, in its opinion, the aim of the right was to ensure the delicate balance is struck between freedom of expression and the press with an individual’s right to dignity in an online world. This meant that the “right to be forgotten” could not be used to infringe the “very essence” of freedom of the press, and a person’s freedom to receive news and ideas.
The Court noted that when deciding whether a blocking or deletion measure is to be adopted, it must meet the principle of proportionality. The Court went on to observe that the news archive in the present case was available online and offline, including an offline archive stored by the content provider. The Court concluded, therefore, that de-indexing from the online archive would not render access impossible.
The Court also examined a number of other factors in determining whether the “right to be forgotten” outweighed the right to freedom of expression in this case, including;
At the case in hand, the articles were published in 1998 and 1999. They did not contain any false information. However, due to the passage of time, the Court found that the articles were no longer relevant or up-to-date, and did not contain any statistical or scientific information which would justify making sure that the public had easy access to them. The Court also added that N.B.B. was not a public figure.
In light of the above, the Court found that the 2nd Chamber of the Istanbul Criminal Court had not carried out a fair balancing of the relevant rights. The Court concluded that access to the news articles online had to be denied to protect N.B.B.’s right to honor and reputation. Therefore, there had been a breach of N.B.B.’s rights under Article 17 of the Turkish Constitution (right to protection and development of the moral existence of an individual).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression by accepting that information can be removed from the internet because it loses its public interest value and newsworthiness after a certain period of time. The positive aspect of this case is that the Court stressed that the “right to be forgotten” must be balanced against freedom of expression. However, the decision still poses a serious threat to the maintenance of newspaper archives online. For instance, little attention was given to the public interest in maintaining such archives, which is an important aspect of the role of a free press in a democratic society. This was highlighted by the European Court of Human Rights in Wegrzynowski and Smolczewski v. Poland, where it was noted that “while the primary function of the press in a democracy is to act as a ‘public watchdog,’ it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported.” In that case, the Court warned against judicial bodies re-writing history by ordering the removal of news stories from the public domain.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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