Protection of Personal Rights and Private Life on the Internet

General 

It is frequently encountered that by exceeding the limits of freedom of expression in the Internet Environment, people are attacked and insulted with posts containing written, audio or visual messages, sometimes not reflecting the truth, sometimes by distorting the facts, using propaganda methods, and although they contain facts, personal data related to the private lives of individuals are revealed without their consent, and news and posts that damage reputation, which are not in the public interest to share, continue to be shared for a long time. What is even worse is that such personal data and posts containing attacks on personal rights can easily reach many recipients in a very short time through social networks. In such a case, the legal remedies that the real person whose personal rights are unfairly attacked on the internet can apply as soon as possible will be briefly examined in our article, as it has gained importance. Criminal acts, misdemeanors, compensation claims and complaints to the Personal Data Protection Board are excluded from the scope of this article; these issues will be discussed separately in our different articles. 

Before starting to examine our subject, it would be useful to briefly explain what personal rights are and what kind of posts on the internet may constitute an attack on personal rights and personal privacy. 

Personality Rights 

The concept of "personality right" is not defined in the Turkish Civil Code. The Court of Cassation, in its various decisions, defines the right of personality as ".... It refers to the rights on the values that make up the personality, which are strictly protected and strictly attached to the person. An attack on elements such as the life, physical and mental health, bodily integrity, freedom, honor and dignity, privacy of private life and secrets of the person is considered a violation of the right of personality. However, since personality rights are a dynamic field that can change according to time and the conditions of the situation, it is not possible to make a limiting count on its scope."   (1) With an approach parallel to the jurisprudence of the Court of Cassation, it would not be wrong to call all "personal values" that we accept that human beings have in order to realize their possibilities as personal rights. Personal values are divided into two as "internal personal values" and "external personal values". 

Intrapersonal values are the values that a person possesses by virtue of being a human being. These are values related to physical integrity (such as body, life, health) and values related to spiritual integrity. 

External personal values, on the other hand, are called the right to engage in social relations. These are values that arise as a result of living together in society and determine the status of the individual in society. These include values such as "prestige", "reputation", "special means of identification" (such as name, professional titles, coats of arms, trademarks, other means of commercial identification), "image" and "voice". (2)

The values in question are not limited, and what they may cover is determined according to the characteristics of each case. In addition, it is accepted that personality rights are absolute rights, that they are among the rights of personal existence, that they end with death, and that they are rights that are strictly attached to the person. 

When the case law of the Court of Cassation is examined, it is seen that the following actions constitute an attack on personal rights in the internet environment.  

- The mentioning of the names of persons on the internet alongside words such as "organization, prostitution and human trafficking" by clearly writing their names as first and last names is an action against the honor and dignity of persons and damages their personal rights, 

- The fact that the names of individuals are clearly mentioned in the news content titled "Scandalous Allegations in the Cooperative" will constitute an attack on personal rights, 

- The fact that the defendant, who is a photographer, published some of the marriage pictures of the participant in the showcase of his workplace and on his website, without the knowledge and consent of the participants, will violate his personal rights, 

- Sharing "allegations that a physician harassed a patient" on social media would constitute an attack on the physician's personal rights,  

- The publication of the photographs taken in the bathhouse on the internet without the consent of the person concerned violates the honor and dignity of the person concerned and damages his personal rights,

- Associating a person with a terrorist organization in an online newspaper would damage his/her personal rights, 

- The use of a photograph of a famous movie actor taken while eating in order to create the impression that he is a regular customer of the defendant's cafe in the menu, advertisements and promotions is a violation of personality rights,  

- In the news content titled "Luxurious life with the boss card", although information about the lawsuit filed against the person is given, it is seen that it is determined that continuing to publish the news will harm personal rights because the news is outdated at a date 8 years later. 

As can be understood from the examples we have stated above, it is useful to make a separate evaluation according to the characteristics of each case in order to determine when personal data sharing on the internet constitutes an attack on personal rights. 

Legal Remedies for Violation of Personal Rights on the Internet 

The basic regulations that ensure the protection of personal rights and private life on the internet are contained in the "Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications". The Law regulates the obligations and responsibilities of content providers, hosting providers, access providers and collective use providers, as well as the principles and procedures for combating certain crimes committed on the internet through content, hosting and access providers.  Article 9 of the Law regulates the legal remedies to be applied when personal rights are violated. In the relevant article, it is regulated that the real person who claims that his/her personal rights have been violated may apply to the "content provider", or in case he/she cannot reach the "hosting provider" and request the removal of the content by warning method, or directly apply to the "criminal judge of peace" and request the removal of the content and/or blocking of access. The requests of the persons will be answered by the content and/or hosting provider within twenty-four hours at the latest. In the case of an application to the judge, the judge will decide on the application within twenty-four hours at the latest without a hearing. The requirements of the judge's decision to remove the content and/or block access shall be fulfilled immediately, within four hours at the latest, by the relevant content and hosting providers and the access provider. Those responsible for content, hosting and access providers who fail to fulfill the decision of the criminal judge of peace within the time limit will be punished with a judicial fine. 

Article 9/A of the Law stipulates that persons who claim that their right to privacy has been violated due to the broadcast content on the internet may directly apply to the Information and Communication Technologies and Communication Authority (ICTA) and request the implementation of the measure to block access to the content. In this request; the full address (URL) of the publication that causes the violation of the right, an explanation of the ways in which the right is violated and information to prove identity information must be included. The President of the ICTA will immediately notify this request to the Access Providers Association for implementation, and access providers will immediately fulfill the request for caution. The persons requesting the blocking of access shall submit the request for blocking access on the grounds that the privacy of private life is violated due to the broadcast content on the internet to the decision of the criminal judge of peace within twenty-four hours from the time of the request. The judge shall announce his/her decision within forty-eight hours at the latest and send it directly to the ICTA; otherwise, the measure of blocking access shall automatically cease to exist. 

To summarize briefly; when we look at the road map in Article 9 to be applied in case of violation of personal rights, there are two ways as "warning removal" method and "judicial remedy" (3); firstly, it is possible to apply to the content provider, and if this cannot be achieved, to the hosting provider and request the removal of the content through the warning method, or directly to the criminal judge of peace and request the removal of the content and / or blocking access. Blocking access is a precautionary decision. When applying for Article 9/A measures, there is no judicial remedy option, but an application form is submitted to the Authority and a decision to block access can be taken. After this decision is taken immediately, it is necessary to apply to the judge again. 

"We wish you no harm to your Personal Rights on the Internet" 

Footnotes

(1) Decision of the Grand General Assembly of the Court of Cassation dated 06.07.2018 and numbered E.2017/5, K.2018/7 

(2) Ahmet Kılıçoğlu, Legal Responsibility for Attacks on Honor, Dignity and Private Life through the Press, Ankara, p.6.

(3) DOĞAN Aişe Sena, Protection of the Right of Personality under Article 9 of Law No. 5651, Journal of Informatics Law (2020/2)