Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The General Assembly of Civil Chambers acknowledged the existence of the right to be forgotten in Turkey, and extended its application to non-digital mediums. The case concerned a victim of sexual assault whose name had been published in a legal textbook. The textbook included the judgment of the criminal trial, which resulted in the perpetrator’s conviction. The victim argued that the inclusion of her name violated her privacy, caused her psychological harm, and damaged her reputation. The General Assembly of Civil Chambers ruled for the plaintiff and awarded her non-pecuniary damages, citing the lack of public interest in publishing her name.
In 2006, MT, a Turkish public officer, was sexually assaulted by her superior officer. A criminal lawsuit was filed and her superior was found guilty of sexual assault in 2009. During the trial, the actions committed by her superior were recounted and described in detail.
In 2010, a legal textbook republished the judgment from the trial. Accordingly, the book included a detailed description of the sexual assault, the name of the victim of the assault, and the name of the perpetrator. MT filed a lawsuit against the authors of the legal textbook, arguing that the inclusion of such information forced her to relive previous psychological trauma and damaged her honor.
She requested that the textbook be taken out of circulation and that she be compensated for moral damage.
The authors of the book argued that they were protected by European and Turkish legislation that guaranteed academic freedom.
A first instance court ruled in favor of MT. On appeal, the decision was reversed and remanded to the lower court for re-trial. Particularly, the appellate court held that in this case academic freedom trumped personal rights. In its reasoning, the appellate court referred to Article 13 of the Charter of Fundamental Rights of the European Union and Article 27 of the Turkish Constitution.
Article 13 of the Charter of Fundamental Rights of the European Union states: “The arts and scientific research shall be free of constraint. Academic freedom shall be respected.’’ Article 27 of the Turkish Constitution similarly guarantees freedom of science as a personal right.”
On remand, the lower court held that the textbook’s inclusion of MT’s name served no academic benefit or scientific purpose. The court also took into account the sensitive nature of the sexual assault lawsuit and the values of Turkish society. On these grounds, the lower court once again ruled in favor of MT.
The case was then referred to the General Assembly of Civil Chambers , which also ruled in MT’s favor.
The General Assembly of Civil Chambers (Assembly) began by stressing that the protection of personal data is closely linked to human rights, because the disclosure of personal data may violate the right to privacy and other related rights. The Assembly also declared that personal development and formation of a democratic society is only possible if individuals’ rights and personal data are protected.
The Assembly applied the right to be forgotten (RTBF) in adjudicating this case. The Assembly defined the RTBF as “the right to request deletion or prevention of further spread of personal data, which is not desired to be known by others, as well as the right to request that unpleasant events stored in digital memory be forgotten.”
The Assembly noted that RTBF grants a personal right to request removal of certain information, and also requires publishers to take necessary measures to prevent the information in question from spreading or being used by third parties in various mediums.
The Assembly held that the concept of the right to be forgotten could be extended and applied to non-digital content that is easily accessible. Here, the Assembly held that the textbook was part of the public memory and could have been easily accessed by the public. Furthermore, the argument that the textbook had a limited readership as it only appealed to criminal judges, prosecutors and criminal lawyers was found by the Assembly to not be a sufficient ground for disapplying the right to be forgotten.
The Assembly then reviewed the publisher’s call to balance of academic or artistic freedom with personal rights. The Court recognized that scientific freedom must enjoy broader liberties than other intellectual freedoms, in terms of legal regime and sanctions. Relying on the Google Spain SL and Anor. v. Agencia Española de Protección de Datos and Anor. (“Google Spain”) decision, the Assembly ruled that academic publications should not reveal personal data unless doing so is in the public’s best interest. Publication may be in the public’s best interest where it relates to public welfare, where the information is of public importance or where there is heightened public attention on the information in question.
Here, the Assembly reasoned that MT’s name served no such public interest and that it could have been easily replaced by an alias in the textbook. Therefore, the Assembly held that MT was entitled to non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision is problematic for freedom of expression and information because the Turkish courts adopted the right to be forgotten, and extended its remit. The European Union’s right to be forgotten in the “Google Spain” decision obliges search engine operators to de-list or de-index search results in relation to certain terms. In the present case, the Assembly applied the right to be forgotten to non-digital material, such as a textbook, and did not limit its application to website or search engine operators. The “Google Spain” decision also obliged de-listing or de-indexing where the data being processed by the website operator is “inadequate, irrelevant or excessive in relation to the purposes of the processing”; “not kept up to date”; or “kept for longer than is necessary”.
However, in the present case, the Assembly conducted a balancing exercise to determine that in this cases there was no public interest in revealing sensitive personal information relating to a sexual assault. Considering the facts, the Court weighed in favor of the right to privacy over academic or intellectual freedom.
It is noteworthy that the Assembly relied on “Google Spain” to justify its decision in the present case, despite the fact that Turkey is not a member of the European Union and the Court of Justice of the European Union’s decisions are not binding on its courts.
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.
The General Assembly of Civil Chambers is an appellate court and its decisions are binding on lower courts.
Let us know if you notice errors or if the case analysis needs revision.