ELIG Gürkaynak Attorneys-at-Law | View firm profile
The Turkish Constitutional Court recently decided that
the right to privacy can be violated on the Internet. The court's decision numbered 2014/16701
("Decision") was delivered on October 13, 2016 and concerned a military officer's
dismissal from the Turkish Armed Forces ("TAF"). The ground of the dismissal was
that the officer's private life is not suitable for TAF's ethical code of
conduct and this information was provided from the images which were
broadcasted on the Internet. The officer
("applicant") individually applied to the Turkish Constitutional Court claiming
that the principle of proportionality was not considered in the dismissal and
his right to privacy was violated since the evidence is obtained unlawfully.
In 2010, an inquiry was established about the
applicant in the TAF after images of him and a woman were published on the electronic
environment. The contents about the applicant on the Internet were seen as
unethical, embarrassing and shameful by the military authorities. As part of
the inquiry, the applicant was questioned about the details of his private life
without being adequately informed of his rights and the inquiry concluded with
his dismissal from the TAF. The applicant brought a claim to the High Military
Administrative Court ("Court") against the Ministry of Defense and argued that
the dismissal decision was unlawful as it was based on his private life and did
not take into account his successful career records. His claim was rejected by
the Court and the Court's decision stated that through the broadcast of the
images on the Internet his private life was publicized and it was understood
that he was not fit to perform a military role. One of the dissenting judges
stated that images published on the Internet cannot be considered as legal evidence
on their own, and another judge stated that the statements given by the
applicant during the examination were regarding his private life and since the
statements have not been accompanied with other concrete evidence his dismissal
was unlawful.
The applicant individually applied to the
Constitutional Court on October 23, 2014. The court evaluated his claim that
Article 20 of the Turkish Constitution which regulates the right to privacy was
violated. The court defined right to privacy comprehensively and stated that right
to privacy includes individual independency and the right to pursue a private
life as one desires and without any interventions from the outside world. The court
also referred to the definition of right to privacy under the European
Convention on Human Rights and Ozpinar v. Turkey case where the European Court
of Human Rights decided that if a person's behavior and attitude is considered
as a reason for dismissal, it will be deemed a violation of one's right to
privacy.
This decision is touching upon crucial discussions on
the right to privacy as well as setting an example of a constitutional right being
violated on the Internet. After establishing that there is an intervention to
the complainant's private life, the court moves on to discuss whether the
intervention constitutes a violation or not. This discussion sheds light on a
very important aspect of the right to privacy which is its scope and
limitations. Article 13 of the Turkish Constitution states that
the fundamental rights and freedoms can be limited, without affecting their
core, only based on specific reasons stated in the Turkish Constitution, in
accordance with the Turkish Constitution and the necessities arising from the
democratic societal order, and in a proportionate way. The court states in Paragraph 53 that the
intervention in the case can be said to have the legitimate purpose of
implementing discipline in the military and ensuring fulfillment of public
service work properly. On the other hand, when evaluating the measure taken by
TAF which is dismissing the complainant, on the ground of necessity and
proportionality, the Constitutional Court stated that the limitations on the
right to privacy require imperative circumstances. The reasoning of the
complainant's dismissal decision does not display clearly the impact of the
complainant's sexual life on the military, and his career as a soldier.
Therefore, it cannot be concluded that the dismissal decision was taken as a
last measure upon imperative circumstances. In light of this evaluation, the
Court decided that the intervention constituted a violation.
The Decision and the discussion regarding the
limitations on the right to privacy raise an important question that is very
relevant to Internet law. The availability of information has significantly
increased with the Internet. The case is an example of details of a person's
private life being exposed on the digital platform and this example is becoming
more and more common. Therefore, the question on the limits of the right to
privacy is becoming increasingly important. Where the line should be drawn? Can
the right to privacy of certain people be limited to a further extent than some
others? What are the overriding factors, if there are any?
The upcoming section of this article will be dedicated
to listing two circumstances in which the right to privacy can be limited.
First of all, if the person concerned is a public or a political figure, the
scope of his or her right to privacy might be argued to be narrower. The
Constitutional Court stated in the case of June 30, 2014 with application
number 2013/5574 that while a person not known publicly has the right to
protection of his or her personal reputation and the right to request a special
protection, people who are publicly
known do not have the right to request a protection on that level. For example,
while information about an ordinary citizen's personal life will be considered
to fall within the scope of his or her private life, a public or a political
figure's personal life might be of relevance to the general public.
Another circumstance in which the extent of private
life can be limited may be when there is a greater public interest. This
circumstance arises when details of a person's private life are newsworthy and
exposed through the news. For example, when activities that a political
figure undertakes outside of his or her
official capacity has an impact on the general public, the details become
newsworthy and therefore, moves outside the scope of his or her private life.
There is a Supreme Court decision numbered 1991/4-628 on the matter stating
that when the right to be informed and criticize is in conflict with personal
rights, the public benefit prevails. Therefore it is understood that when there
is public benefit in learning the details of a person's private life, the scope
of that person's private life can be narrowed without affecting its core.
To conclude, the Decision is an important one for a
number of reasons. The right to privacy has long been established in Turkish
law, but this case extends the scope of the right to the digital environment. The
decision might be a precedent for when a violation of a constitutional right
through the Internet comes into question. The Decision also touches upon a very
crucial aspect of the right to privacy. Like many of the other rights and
freedoms, the right to privacy is not unlimited. The Constitutional Court
evaluates the intervention in the case at hand from this perspective, and goes
through a checklist before deciding whether the intervention constitutes a violation
or not. This checklist includes but not limited to necessity and
proportionality. The discussion upon the limits of private life, as explained,
needs many aspects to be evaluated, especially when it comes to protecting
private life in the Internet realm. Therefore, this Decision is not only very
crucial for the constitutional right to privacy but also to Internet law.