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.