The Right to Protection of Personal Data in the Constitution of the Republic of Turkey
"Everyone has the right to request the protection of personal data concerning him or her. This right includes the right to be informed about personal data concerning him/her, to access such data, to request their correction or deletion, and to learn whether they are used for their intended purposes. Personal data may only be processed in cases stipulated by law or with the explicit consent of the person.
There are Constitutions that regulate the right to protection of personal data as a fundamental right, as well as Constitutions that protect this right within the right to respect for private life. The Belgian Constitution of 1831, the Swedish Constitution of 1975, the Portuguese Constitution of 1976 and the Spanish Constitution of 1978 include the right to protection of personal data. These regulations also show that the right to protection of personal data has started to be regulated as an independent right. In some countries, this right is not explicitly regulated in constitutions but is considered within the scope of the right to respect for private life. In some countries, this right is regulated by law.
Article 20 of the Constitution of the Republic of Turkey was amended by Article 2 of the "Law on the Amendment of Certain Articles of the Constitution of the Republic of Turkey" dated 07.05.2010 and numbered 5982: "Everyone has the right to request the protection of personal data concerning him/her. This right includes the right to be informed about personal data concerning him/her, to access such data, to request their correction or deletion, and to learn whether they are used for their intended purposes. Personal data may only be processed in cases stipulated by law or with the explicit consent of the person. The principles and procedures regarding the protection of personal data shall be regulated by law." The justification of the Law states that "Although there are indirect provisions in the Constitution for the protection of personal data, they are not sufficient. The protection of personal data is also emphasized in comparative law and international documents to which we are a party. The Article guarantees everyone's right to request the protection of personal data concerning them as a constitutional right. In this context, it is stipulated which rights and powers individuals have over personal data concerning them and in which cases personal data can be processed, and it is envisaged that the principles and procedures for the protection of personal data will be regulated by law." After this regulation, it is seen that the right to protection of personal data is regulated as a separate fundamental right in Article 20 titled "Privacy of Private Life" in the 2nd section titled "Rights and Duties of the Person" in the 2nd section titled "Fundamental Rights and Duties" of the Constitution.
Before the constitutional amendment was made by Law No. 5982, personal data was protected under Article 20 of the Constitution, which reads as follows: "Everyone has the right to demand respect for his/her private and family life. The privacy of private and family life shall be inviolable." and Article 8 of the ECHR which states that "Every person has the right to respect for his private and family life, residence and correspondence.
When the content of the regulation is examined, it is seen that personal data can only be processed in cases stipulated by law and with the explicit consent of the person, where the person has the right to access personal data about himself, to request correction and deletion of the data, to learn whether it is used for the purposes for which it was obtained and to request the protection of his personal data. The Constitution also states that the principles and procedures regarding the protection of personal data shall be regulated by law, and in this context, Law No. 6698 was published in the Official Gazette dated 07.04.2016 and entered into force.
The direct regulation of the right to protection of personal data in the Constitution imposes certain positive obligations on the state in terms of the protection of personal data. The fact that rights are only recognized in constitutions does not mean that rights are accessible. The institutional structure that will enable individuals to access the right defined in the Constitution must be established and kept in continuous operation by the state. In addition to the establishment of the institutional structure, the state will also make this right accessible through some norms it will regulate. The state will make regulations on the respect of personal data by other real or legal persons through the norms it sets, as well as taking measures to create the necessary understanding and behavioral principles to respect all human rights and freedoms by all individuals by educating individuals within the scope of ethical values, protecting the privacy of individuals, respecting private life and ethical principles within the education system.
The right to protection of personal data also enables the protection of some of the other fundamental rights and freedoms in our constitution. Within the scope of freedom of thought and expression, an individual whose personal data is collected and classified due to his/her political thoughts and beliefs, an individual whose identity information and pictures are obtained and stored due to his/her participation in a certain meeting and demonstration march, an individual whose identity information is processed due to his/her different beliefs, similarly, an individual whose personal data is processed due to his/her membership to a certain association will not be able to access these rights since the conditions for freedom of belief, thought, association and assembly will not be met. In the case of I.B. v. Greece, I.B., who is HIV Positive, applied to the ECtHR and claimed that he was dismissed and discriminated against because his HIV Positive information was shared with his employer. The ECtHR found a violation (1). The right to protection of personal data can almost constitute a necessary precondition for other rights.
When we take into account that the demands for the protection of personal data also include demands for the protection of personality rights, and that the values related to the material and moral integrity of the person are recognized as personality rights, it will be necessary to take into account that personal data also includes the conditions for the protection of the material and moral existence of the person. While the person develops his/her spiritual existence, cultivates himself/herself and ensures his/her personal development, the individual whose personal data is processed in the activities he/she performs will feel himself/herself under risk. These activities may be political activities or activities related to his/her lifestyle, philosophical thought, world view. The protection of personal data contributes to the creation of the conditions necessary for the realization of the person's material and spiritual existence. From this point of view, the right to protection of personal data is a right that is directly effective in the realization of other fundamental rights and freedoms and in the achievement of some fundamental rights and freedoms.
Although the right to protection of personal data is a fundamental right regulated in the Constitution, it is not considered an absolute right. It is a right that can be limited when other rights need to be protected. In particular, Article 26 of the Constitution under the heading "Freedom of expression and dissemination of thought" states that "Everyone has the right to express and disseminate his/her thoughts and opinions individually or collectively by word, writing, picture or other means. This freedom shall include the freedom to receive and impart information or ideas without interference by public authorities." In the face of the regulation, sometimes the right to protection of personal data of an individual whose personal data is shared may conflict with the freedom of thought and expression. In such cases, it will be necessary to make a choice as to which of the values protected by the right and included in human dignity should be protected. This situation necessitates a separate evaluation in each concrete case.
(1) A. Tarık GÜMÜŞ, The Right to Respect for Private Life within the Scope of Positive Obligations of the State, Adalet Publishing House Ankara 2016, p. 182.
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