Media law has been evolving especially since 1990s following the establishment of private broadcasting organisations in Turkey. The Law on Establishment of Radio and Television Enterprises and Media Services was enacted in 1994. This Law stipulated the Supreme Board of Audio Visual Services ("RTUK") as a supervising institution, which grants broadcasting licenses, allocates frequency bands and implements the broadcasting principles in the media sector. In 2011, that Law was renewed in light of new technological developments and new forms of media communication ("The New Media Law"). The New Media Law is aligned with the EU Legislation on broadcasting principles of media law. Though, like elsewhere, one issue is always open to hot debates: "Protection of Privacy".
Protection of privacy, which is one of the most important fundamental rights and freedoms stipulated in Turkish Constitution, becomes more important in the area of media law due to new technological developments, which facilitate its violation. The New Media Law stipulates the protection of privacy under Article 8 and prohibits broadcasts that violate the respect to human dignity and privacy. In fact, the protection of privacy can be violated through a number of ways such as live broadcast, camera pranks or secret recording in the media sector. As there is no specific definition of privacy in the Law, the decisions of RTUK and the jurisprudence of the Court of Appeal would shed a light for interpretation.
In media and press law, the basic principle is the freedom of press based on the freedom of opinion and expression. However, fundamental rights such as freedom of press and protection of privacy could conflict in the process of gathering news, followed by its publication and broadcast. For instance, we observe the use of secret camera recordings by journalists especially in gathering news relating to specific crimes such as human trafficking and drug trafficking, which concern public order. In fact, recording individuals' communication without their consent is stipulated as a criminal offence in the Article 132 of the Turkish Criminal Code Nevertheless, both RTUK, Court of Appeal and the Council of State seem to be more tolerant in such cases provided that it is in the interest of the public and there are no other legal ways to determine the truth. In other words, public interest should override the right to privacy in some cases in order to protect public order. If the issue does not related to public interest, national security, public safety or the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, RTUK interprets and accepts the secret camera recording as a sensational aim to unjust compete with other journalists, which creates a violation of broadcasting principles. The aim of the using secret camera to gather a new is very significant during the evaluation of the news or programs by RTUK, Court of Appeal and Council of State. These authorities also take into consideration the interference corresponds to a 'social need' and that it is 'proportionate to the legitimate aim being pursued' during their evolutions.
As mentioned above, there is no exact definition of privacy or private life in the Law, however, RTUK and Court of Appeal defines the private life as follows: "....private life includes an individual's physical and psychological integrity, personal or private space, the collection and publication of personal information, personal identity, personal autonomy and sexuality, relation with others and reputation...." and pursuant to decisions of RTUK and Court of Appeal, it is designed to ensure that the right to use private life of the people from being disclosed to third parties can be balanced against legitimate aims of a public order/interest. Article 8 rights of the Law often compete with other qualified rights, in particular the freedom of expression or freedom of media. Case law has made it clear that neither article has automatic precedence over the other. Ultimately, RTUK, Court of Appeal and the Council of State decide on a case-by-case basis how the balance should be struck.
For instance, pursuant to Court of Appeal decision, the one of the most important duties of media is to provide timely, accurate information to the public on matters of public interest and to constitute knowledge and awareness of people. The border of freedom of press is accuracy, actuality, public interest, public attention, intellectual commitment between scope and expressions. In parallel with this decision, RTUK decides that deception issue and effects of divorces on the people's physiology in the TV program. During the program, the frontman gave real life examples about divorce and deception with using famous people's names, it constitutes breach of private life and there is no legitimate aim of a public order/ interest to display the private details of divorcement of famous people.
Cases on violation of privacy often involve lives of famous people (public figures) such as politicians, mayors, actresses, singers.. Where a person's character is an essential part of performing their public role, the public has the right to know any facts which reveal special aspects of their character, especially faults. RTUK deems that public interest should be taken into account in preparation of news regarding such individuals. In that respect, journalists are required to consider a sensible balance between public interest and private life when reporting such news.
For example, RTUK, in a decision dated April 2012, interpreted secret and close-up video shooting of a Turkish celebrity's private telephone messages to a person during her divorce process as a violation of privacy considering sensational aims of the news. In the decisions of RTUK, it is observed that not only the right of public to receive news, but also the private lives of individuals are protected. Some of the issues considered by RTUK are accuracy, actuality and proportionality.
As stated above, freedom of press often compete with protection of privacy in many cases. The protection of privacy limits freedom of press therefore the Court of Appeal balances the two rights to resolve cases. RTUK and Court of Appeal look at the balance and relationship between a person's right to privacy and the public's right to know about that person's life. Under certain conditions, the Court of Appeal accepts violations of privacy. Also in the judicial assessment, the factors considered are the accuracy of news, public interest and protection of public order, newsworthiness and whether the news could be expressed without violating the individual's privacy. The most significant conditions considered by RTUK are accuracy, actuality and proportionality during their evaluation.
Primarily the news should reflect the truth; therefore, journalists should sufficiently research the subject before publishing or broadcasting the news to public. The news that do not reflect the truth are interpreted as a violation of the law. The news shall be based on some principles as trueness, independence and impartiality. The second important condition considered by the Court of Appeal is public interest and the protection of public order. As illustrated in the examples above, the news that violates privacy can only be justified if the Court of Appeal or RTUK establishes that it serves public interest. Furthermore, RTUK does not abide violations of privacy for the purposes of rating or competition with others in the media sector. Newsworthiness is another condition used by the Court of Appeal during the interpretation of balance of rights. In fact, newsworthiness depends on the type of news. For example, some news, which directly concern public order, could maintain its newsworthiness more than a simple event. Finally, the Court of Appeal considers whether the news could be expressed without violating the individual's privacy in the process of preparing the news. In other words, expression form of the news shall be in compliance with the aim of the concerning subject. The Court of Appeal interprets publication of identity, image, name or life story of a person without consent in some news as a violation of privacy if its publication is not newsworthy, unnecessary and disproportionate with the aim of the news. If a journalist could reach the same aim without violating privacy, this violation could not be accepted by the Court of Appeal. In the RTUK decision dated September 2012 regarding the connection between news and the information that is used in the news, sport anchors talked about the match-fixing case, leque and football teams in the sport program, however one of the anchor provided the health report which contains personal and private information of sports man and there is no connection between the report and the discussion/ news. RTUK decides that its publication is not newsworthy, unnecessary and disproportionate with the aim of the news, in this regard, RTUK awards an administrative fine to TV channel due to breach of privacy of people's life.
In conclusion, it can be said that there is a fine line between the freedom of press and privacy rights and these are competing rights. Additionally, on issues of privacy and public interest, there is often no clear-cut distinction between right and wrong. In this regard RTUK, Court of Appeal and Council of State decide on a case-by case basis. The case law provides a means of balancing the individual's right to guard his or her privacy against the public's right to know about matters of general importance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.