Turkey: Protection Of Privacy In Media Law

Last Updated: 10 April 2013
Article by Eda Yikilmaz and Ece Zerey

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions