Partner - ELIG Gürkaynak
Defamation, Privacy and Data Protection
Contributor: Gönenç Gürkaynak (Partner) and Ceren Yıldız (Partner), ELIG Gürkaynak
Data protection law is also a hot topic at the moment. The Turkish Data Protection Authority (“DPA”) actively investigates privacy incidents and scrutinize data protection practices in line with the legislation on personal data protection.
As for the issue of privacy, individuals now tend to give their personal information willingly on social media sites more easily than ever, but may not fully understand the way their information is used, or the associated privacy risks. Therefore, it makes it even more difficult to address possible consequences of this practice, especially given the low level of awareness among the public. Nevertheless; privacy has become the major concern of this era in terms of data protection.
Defamation is regulated under the Turkish Criminal Code (“TCC”) as a crime. Per Article 125 of TCC, attributing a concrete action or fact in a way to harm the honor, reputation and dignity of a person or to assault anyone’s honor, reputation and prestige by swearing would be subject to an imprisonment from three months to two years or the imposition of a judicial fine.
To punish this offense committed in the absence of the victim, the act should be committed in presence of at least three persons. For instance, in the case of defamatory content broadcasted online, it would be deemed that the act has been committed in the presence of at least three persons and consequently be considered as the crime of defamation.
If this crime is committed (i) against a public officer, (ii) against a person due to their disclosure, change or attempt to spread religious, social, philosophical beliefs, opinions and conclusions or due to their obedience to the orders and prohibitions of their religion, (iii) in relation to sacred values for the person’s religion, the minimum penalty may not be less than one year.
Moreover, the relevant provision expressly states that in the case of public defamation the penalty would be increased up to one sixth.
Aggrieved parties may file the lawsuit based on defamation within six (6) months after the defamatory act occurs (Article 73/1 TCC).
Defamation may be considered within the scope of Article 24 of the Turkish Civil Code, which governs violation of personal rights. Pursuant to the relevant provision, individuals who claim that there is a violation of their personal rights may request protection from those who violate their personal rights.
Personal rights have a wide scope and capture one’s rights on their name, images and personal information, protection of their dignity and reputation and privacy of their personal life. In this regard, defamatory acts directed at an individual may also be evaluated within the scope of Turkish Civil Code and in the framework of protection of personal rights.
Individuals may file a lawsuit and request (i) prevention of the violation of personal rights, (ii) cease of an ongoing violation, (iii) determination of illegality of acts which have been ceased, if their effects continue to exist. In addition to the foregoing, individuals may also request the decision to be notified to third parties or to be published. Individuals may also request compensation for pecuniary and non-pecuniary damages.
In cases where the defamatory content violating one’s personal rights is published online, individuals who claim that there is a violation of their personal rights may apply to criminal judgeships of peace based on Article 9 of the Law No. 5651 on Regulation of Broadcasts via Internet and Prevention of Crimes Committed Through Such Broadcasts, which entitles individuals to request a ban on access to contents based on violation of their personal rights.
Although not expressly regulated under a separate heading as defamation, some provisions of the Turkish Commercial Code provide protection to business organizations against unfair commercial practices, some of which might be argued to be closely aligned with defamation.
For example, Article 55 of the Turkish Commercial Code expressly prohibits defaming other organizations’ products, prices or activities with false, deceptive and unnecessarily offending statements.
Organisations may file an unfair competition lawsuit before commercial courts for determination, prevention and cease of unfair commercial practices. Moreover, compensation may also be requested in the relevant lawsuit for the damage suffered as a result of the unfair practices.
Pursuant to Article 60 of the Turkish Commercial Code, organisations should file the lawsuit within one (1) year after becoming aware of the commercial practices and at most, three (3) years after such practices occur.
The main defence against a defamation claim would be arguing that the relevant statements should be protected within the scope of freedom of expression and/or that there is public interest in such statements being said and/or heard due to the nature of the content and/or the person to whom the defamatory contents are directed.
Content that is created and published by a member of the press, such as a journalist, news reporter, news website, or newspaper, and which is also newsworthy, might be considered to fall within the scope of freedom of expression and press. Punishing someone for such defamatory contents and/or removing or access banning news-related content created or uploaded by a journalist, news reporter, news agency or a news website might amount to censoring expressions of journalists and dissemination of news-related content. The Turkish Constitution declares that the press is free and cannot be censored, and thus, such censorship would be in violation of the Constitution. Therefore, one might provide defences against defamation claims on the grounds of freedom of expression and press.
In addition to journalists and news agencies, content created by artists may also be evaluated within the scope of freedom of expression. Having ratified the International Covenant on Economic, Social and Cultural Rights, Turkey has undertaken “to respect the freedom indispensable for scientific research and creative activity.” Moreover, “everyone has the right to freely study, teach, impart, and disseminate science and arts, and to carry out research in these fields,” according to the Turkish Constitution.
The nature of the content is an important factor in the evaluation of whether a particular piece of content is protected by freedom of expression. If there is public benefit in broadcasting the relevant contents due to its subject, they might be protected within the scope of freedom of expression.
Turkish courts take the view that a piece of content cannot have any public benefit if it loses its relevance to current events. However, this is not an absolute rule either. If the past event in question has a connection to a current event, then the past event can regain its relevance and come to have some public benefit.
The precedents under Turkish laws and the international treaties that Turkey has duly approved and enacted indicate that public benefit prevail over personal/individual benefit in the assessment of “freedom of expression” claims. A key decision of the Supreme Court’s Civil Chambers Assembly also attests this, by explicitly stating that when personal rights and public benefit are in conflict, the public benefit prevails.
For example, content relating to claims that a former minister was involved in a military coup attempt, corruption allegations, allegations relating to the forgery of official documents by a public officer, allegations that a public official had connections with a terrorist organisation, or a news report concerning child abuse or mistreatment at a public school or dormitory, might all be considered as examples of expressions possessing public benefit.
Sexual assault is a crime under the TCC and declaring that a person has supported or aided sexual assault may constitute defamation, since attributing a crime to a person or accusing a person of a crime may be considered as defamation purely from a Turkish law perspective. However, such statements should be considered to fall within the scope of the right to freedom of expression when there is a public interest, since public benefit generally transcends and prevails over personal rights. The Supreme Court’s 4th Civil Chamber has declared in one of its decisions that: “However, the limitations for personal rights might be overcome within the scope of public benefit, meaning that public benefit prevails if public benefit and private benefit clash … Since the interest of the press to inform and illuminate the public creates a superior value compared to the victim’s honor and dignity, the act will not even be illegal per private law …”
For criminal allegations to be considered within the scope of freedom of expression, they should be relevant, possess public interest/benefit or be accurate in light of the apparent facts, when such allegations are published or broadcast by the press.
Unless a statement is directed at political and/or well-known public figures, the limits of tolerable criticism are evaluated in a narrow manner in Turkish law. In other words, defamation might be interpreted widely.
It is an established precedent under Turkish law that public and political figures should be more tolerant than private individuals towards unsympathetic statements and harsh criticisms that are directed at them. In fact, the Constitutional Court has stated in one of its decisions that:
“A person who is not known by the public has the right to request respect for his personal reputation; protection of such degree is not acceptable for publicly known individuals.”
Turkish high courts are inclined to regard celebrities, politicians, elected members of parliament, city mayors and certain government officials as public figures, stating that they should tolerate harsh criticism in light of their public positions. Therefore, the person to whom the defamatory contents are directed to might be used as a defence.
The right of privacy is regulated as a fundamental right under Article 20 of the Constitution of the Republic of Turkey. As a secondary legislation, Law No. 6698 on Protection of Personal Data (“DPL”) which also constitutes the main legislative instrument that specifies the principles and procedures concerning the processing and protection of personal data, has been published in the Official Gazette on 7 April 2016 and is in effect as of this date.
There are number of pieces of legislation regarding privacy in terms of data protection in Turkey under private and public law. These laws relate to privacy of private life, recording of personal data, unlawfully disseminating or capturing data, failure of destroying data and preventing and impairing the system, altering or destroying data.
Most specifically, DPL imposes several obligations regarding the collection and processing data and failure to meet these requirements have serious sanctions under the same law. Not providing mandatory information to the data subject will be subject to an administrative fine ranging from 29,852 TRY up to 597,191TRY.Not fulfilling the obligations relating to data security, in terms of taking all technical and administrative measures, will be subject to an administrative fine ranging from 89,571 TRY up to 5,971,989 TRY. Not abiding by the decisions rendered by the DPA will be subject to an administrative fine ranging from 149,285 TRY up to 5,971,989TRY. Not complying with the obligation to enroll to the DPA and the obligation of notification will be subject to an administrative fine ranging from 119,428TRY up to 5,971,989 TRY. The given administrative fine amounts are for the year 2023 and are subject to change each year.
The DPA strictly and seriously enforces the obligation to notify the authority and data subjects on data breaches. On November 23, 2022, DPA has published a document named “Personal Data Protection Authority in its 5th Year” (“Document”) on its website. The Document which consists of 222 pages provides information of the DPA’s activities and the work conducted by the DPA within the past 5 years.
According the Document, the breakdown of the administrative fines over the last 5 years, imposed due to data breach notifications are as follows:
(i) The administrative fines imposed by DPA regarding data breach notifications in 2017: 0
(ii) The administrative fines imposed by DPA regarding data breach notifications in 2018: 200,000 TRY.
(iii) The administrative fines imposed by DPA regarding data breach notifications in 2019: 11,200,828 TRY.
(iv) The administrative fines imposed by DPA regarding data breach notifications in 2020: 9,893,000 TRY.
(v) The administrative fines imposed by DPA regarding data breach notifications in 2021: 15,395,000 TRY.
(vi) The administrative fines imposed by DPA regarding data breach notifications in 2022: 2,580,000 TRY. Under the TCC, those recording personal data will be imprisoned for one year to three years. Those disseminating personal data will be imprisoned for two to four years. Those producing, importing, transporting, storing, selling, exposing for sale, buying, supplying and keeping equipment, a computer program, a password or other security code which is specifically used as a tool for cybercrimes or used as a tool for any other crimes committed by electronic means will be imprisoned for two years to six years and be subject to a punitive fine calculated and determined on a daily basis for up to 5,000 days.
In addition, pursuant to Article 24 of the Turkish Civil Code, a civil action can be initiated due to a violation of personal rights.
One also may file a complaint before the DPA regarding processing of his/her personal data. As a result of a complaint or ex officio examination, DPA may order the remedy of the unlawful act and notify the decision to the relevant parties. Relevant parties should comply with the decision within thirty days at the latest.
Explicit consent will be required to be able to process one’s personal data and the burden of proof varies with respect to the nature of the violation. In the event that processing personal data is on the basis of explicit consent, procedures of the obligation to inform and obtaining explicit consent shall be performed separately. The explicit consent should include a positive statement on the will of the data subject giving the consent, should be related to a specific subject, should be based on a clarification, and should be disclosed with a free will by the data subjects. The explicit consent should be written or should be taken through electronical means.
Those processing personal data may justify their processing activity on the following circumstances where personal data may be processed without data subject’s consent:
(i) Processing is necessary to protect the vital interests or the bodily integrity of the data subject, or of another person, where the data subject is physically or legally incapable of giving his/her consent
(ii) Processing personal data of the parties of a contract is necessary, on condition that the processing is directly related to the execution or performance of such contract
(iii) Processing is necessary for compliance with a legal obligation to which the data controller is subject
(iv) Data has already been made public by the data subject
(v) Processing is necessary for the establishment, exercise or defense of a legal claim
(vi) Processing is necessary for the purposes of the legitimate interests of the data controller, provided that such interests do not violate the fundamental rights and freedoms of the data subject.
Special categories of personal data, other than those relating to health and sex life, may be processed without the explicit consent of the data subject if the processing is explicitly allowed by law. In the event that such data is processed by authorized entities and institutions or by persons who are under an obligation of confidentiality for the purposes of protecting public health, preventive medicine, medical diagnosis, planning, managing and financing of treatment and maintenance services; personal data relating to health and sex life may be processed without the explicit consent of the data subject.
The rules and practice on defamation, privacy and data protection are evolving and tested by new developments. The scope of freedom of expression and what constitutes defamation continue to be dynamic issues and new precedents emerge on these matters. As for data privacy, new practices emerge every day and entities and individuals continue to increase self-awareness on their rights and obligations.
Contributor: Gönenç Gürkaynak (Partner) and Ceren Yıldız (Partner)
Çitlenbik Sokak No:12
Beşiktaş, 34349 Istanbul
The material in this Guide is for general information only and does not constitute legal advice.
SEE MORE INTERNATIONAL MEDIA LAW GUIDES