A Current And Ceaseless Debate: Right To Private Life Versus Freedom Of The Press Criteria For Lawful Reporting Under Turkish Law

The political atmosphere in Turkey became tense due to corruption allegations against various cabinet members and their families after dawn raids were made on their homes on 17 December. The tension increased when audio tapes surfaced which allegedly contained recorded conversations of Prime Minister Tayyip Erdoğan, which were illegally acquired and some of which were denied and regarded by the prime minister as "montage." These audio-tapes were the main subject on the Turkish political scene and -naturally- the media initiating the debate over how free the press really is.

Freedom of press is expressly protected by the Turkish Constitution, which states that "[T]he press is free and cannot be censored." The same fundamental principle is also reflected under the Press Law, which proceeds with defining the freedom of press as follows: "[T]he press is free. This freedom includes the freedom of information, dissemination, criticism, interpretation and creation of works." However, freedom of the press is not absolute: it may be restricted when it comes into conflict with other rights protected by the constitution, such as personal rights including the right to a private life and the freedom of communication, or when it constitutes certain other criminal offenses such as interfering with ongoing judicial processes or inciting terrorism.

The conflict which presents itself most often is that between personal rights and the freedom of the press. The courts have fashioned a four-prong test to determine when the reported person's personal rights are violated. As per the court precedents on this issue, the four prongs of this test are (i) whether publishing the news is in the public interest; (ii) whether the news is in accordance with the apparent facts; (iii) whether the news is sufficiently related to current events; and (iv) whether the style of the reporting is proportional to the content of the news being reported. If these four prongs of test are met, reporting of the news will be deemed to be in compliance with the law notwithstanding any potential violations of personal rights, and the press cannot be held liable for disseminating such news.

1. Public Interest: It is both a right and an obligation of the media to meet the needs of the public to receive information, to communicate, to express and disseminate ideas and to remain informed. It is frequently remarked that freedom of expression and the right of the public to be informed of the truth is essential to maintaining a democratic society. Further, the press is charged with meeting the public right and the public need to receive information which tends to advance these public interests. This public right to receive information is most pronounced where the relevant information concerns matters of public administration.
   
   In this connection, Court of Appeals decisions have recognized that the lives of public figures such as politicians can be regarded as more transparent and open to the public compared to those of private people. Therefore, reporting about the lives of politicians within the scope of objectivity is a part of the media's obligation to inform the public, advancing the public interest. On the other hand, disseminating news with the sole purpose of gaining personal economic benefit, or of punishing others, or of obtaining personal benefits for others will not be considered to fulfill a public interest. News disseminated with such intentions is not exempted from the constitutional protections afforded to personal rights, and may be prosecuted for having violated these guarantees.
2. Veracity: The media must be objective in reporting the news. However, the press is not obligated to verify what appear to be plain facts at any given moment; that an apparent fact may later prove to be untrue will not subject the reporting institution to liability at the time that the falsity of the apparent fact is discovered.¹ Since the press cannot be held liable for reporting apparent facts, it may report and interpret facts in accordance with what appears to be the truth at that given moment.
3. Relevance to Current Events: The press's interpretation and reporting must be important for the public at the date of the publication. The press may report news about current matters in a way in which it will draw the public's attention.² The newsworthiness of events depends on large part to whether they are related to the developments taking place at the time that they are reported. Thus, news of an event that is long in the past may be thought not to be relevant to current events, and thus the public interest in reporting it may be though not to outweigh the harm that would be done to the person about whom the news is reported.
4. Proportionality: Reporting must be proportional to the underlying facts, meaning that the tone of a report must match the underlying substance. This standard means in practice that mundane facts may not be reported under titillating headlines completely out of proportion to the underlying story. Moreover, news must not include humiliating or discrediting commentary, and must not mislead the public.³ A person should not be accused of a crime if the person has not been convicted in court, and news which comprises an explicit breach of the right to a private life and communication, should not be reported in the absence of compelling public interest.

Under Turkish law, if all of the criteria stated above are not satisfied in a particular report, freedom of the press may be made to give way to personal rights; this may result in exposing the press to liability for breaching personal rights such as the right to a private life or the right to the privacy of communications. Turkish laws stipulate compensation for breaches of personal rights. In case news is reported without satisfying the abovementioned criteria, the person whose personal rights are breached may request pecuniary and non-pecuniary compensation pursuant to the Turkish Civil Code and the Code of Obligations; in addition, such person may invoke his right of rectification and reply set forth under the Turkish Constitution.

To sum up, the rights and freedoms provided by the Constitution are not limitless, and therefore may conflict with each other. The most current example for such a conflict appeared between the freedom of the press and personal rights in the context of the latest corruption allegations occurring in Turkey. In order to for the freedom of press to outweigh personal rights, reporting must be in the public interest; must be in accordance with the apparent truth; must be related to current events; and finally the style of the reporting must be proportional to the content of the news and the facts being reported. As stated in appellate court decisions, the freedom of expression and the right of the public to be informed are markers of a democratic society. When the public interest necessitates, the public right and the public need to receive information and the press's right to inform must have precedence over personal rights.

Footnotes

1 4th Court of Appeals decision no.2006/8928 E, 2006/11131 K.

2 4th Court of Appeals decision no.2012/3855 E., 2012/15818 K.

3 Supreme Court of Appeals decision no. 2002/4-413 E, 2002/409 K.

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.