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Individual Application User Guide Türkçe

(N.B.B. [GK], B. No: 2013/5653, 3/3/2016, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 

PLENARY

 

JUDGMENT

 

N.B.B.

(Application no: 2013/5653)

 

3 March 2016


On 3 March 2016, the Plenary of the Constitutional Court found a violation of the right to honour and reputation safeguarded by Article 51 of the Constitution in the individual application lodged by N.B.B. (no. 2013/5653).

 

THE FACTS

[8-19] Three news reports indicating that the applicant had been sentenced to a judicial fine for using drugs were published in the web-site archive of a national newspaper in 1998 and 1999. On 2/4/2013, the applicant sent a written warning to the relevant media outlet for banning the publication of these three news reports. As the contents of these news reports were not made unavailable within two days, the applicant applied to the 36th Chamber of the İstanbul Magistrate’s Court (which was closed) on 18/4/2013 against the relevant media outlet and requested publication of the impugned contents be discontinued. On 22/4/2013, the Magistrate’s Court decided to accept the applicant’s request on the grounds that the news report subject-matter of the request was not up-to-date and newsworthy anymore; that there was no public interest for its remaining on the agenda; and that it included offending and destructive information concerning the relevant person’s private life.

Upon the objection, it was held by the decision dated 28/5/2013 of the 2nd Chamber of the İstanbul Criminal Court of General Jurisdiction that the above-mentioned decision of the Magistrate’s Court be revoked. This decision was notified to the applicant’s representative on 21/6/2013.

IV. EXAMINATION AND GROUNDS

20.         The Constitutional Court, at its session of 3 March 2016, examined the application and decided as follows:

A.            The Applicant’s Allegations

21.         The applicant maintained that the website of the relevant media outlet published news and articles in 1998 and 1999 concerning the incident where s/he was sentenced to pay a judicial fine as a result of the criminal proceedings against him/her, that the news and articles in question had still been kept in the archive sections in the relevant website, that despite his/her request for the removal of the articles, the appellate authority decided to revoke the decision accepting the request for the removal of the article from the website and that his/her rights safeguarded by Articles 12, 17, 20, 25, 26, 27 and 32 of the Constitution were violated on the ground that the judicial authorities dismissed his/her requests for the removal of the news which still had been kept on the websites in question.

B.            The Courts’ Assessment

1.         Admissibility

22.          Even though the applicant alleged that his/her rights safeguarded by Articles 12, 17, 20, 25, 26, 27 and 32 of the Constitution were violated, it has been decided that in consideration of their nature, the applicant’s allegations shall be examined within the scope of Article 17 § 1 of the Constitution in conjunction with Article 20 § 3 of the Constitution on account of the reasons explained under the heading of “Merits”.

23.          In the present case, the applicant had recourse to only the magistrate’s court for the alleged interference with his/her honour and reputation, requesting the removal of the content published in the web site but did not exhaust any other remedy.

24.          Article 148 § 4 of the Constitution and Article 45 § 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Court, dated 30 March 2011, stipulate that before lodging an individual application, all the administrative and judicial remedies prescribed by the law in respect of the act, action or negligence which constitutes the basis of the alleged violation must be exhausted. The obligation of the instance courts to primarily redress the violations of fundamental rights necessitates the exhaustion of remedies (see Necati Gündüz and Recep Gündüz, no. 2012/1027, 12 February 2013, §§ 19, 20).

25.          However, the term “remedies” specified in the provisions in question must be understood as available and effective domestic remedies capable of offering a reasonable prospect of success and providing a resolution in respect of applicants’ complaints. In addition, the rule of exhaustion of domestic remedies is neither absolute nor applicable in terms of procedures, and in the inspection of compliance with this rule the circumstances of the relevant application shall be taken into consideration. In that connection, in the legal system, not only the availability of several remedies but also the conditions for their implementation and the individual circumstances of the applicants shall be taken into consideration in a realistic manner. For that reason, while examining whether the applicants have taken all the steps expected from them for exhausting the legal remedies, the circumstances of the application should be taken into consideration (see S.S.A., no. 2013/2355, 7 November 2013, § 28).

26.          Accordingly, in the present case it should be assessed whether the positive obligation of the State necessitates the removal of the web content which falls within the jurisdiction of the magistrate judge. In other words, it shall be examined whether the remedy of removal of the content and blocking of access, which falls within the jurisdiction of the magistrate judge, is an available and effective remedy that is capable of offering a reasonable prospect of success and providing a solution in respect of the applicant’s complaint that his/her right to honour and reputation was not protected due to the news archive, which was the subject matter of the case.

27.          In our legal system, the removal of the web site content is possible via lodging an application with the magistrate judge, as is the case in the present application, or bringing an action before civil courts (see Ahmet Oğuz Çinko and Erkan Çelik [Plenary], no. 2013/6237, 2 July 2015). However, in the present application, in consideration of the facts that the news which were requested to be removed had been on the internet for a long period of time, that they had been easily accessible via the news archive on the web site, that the interference with the applicant’s honour and reputation had continued for a long time and that the immediate removal of these contents would provide protection for the applicant’s right to honour and reputation as well as for his/her personal data; it should be accepted that lodging an application with the magistrate judge was an effective remedy in the circumstances of the present case. Indeed, it cannot be said that the remedy of adversarial hearing before civil courts could have met the requirement where long lasting interference with the right to protection of honour and reputation in the present case should be redressed without delay (see Türkiye İş Adamları ve Sanayiciler Konfederasyonu, no. 2014/8691, 6 October 2015, § 22).

28.          The applicant’s complaint that his/her personal rights had been impaired and Article 17 of the Constitution was violated on the grounds that the news about him/her had still been easily accessible in the website of a gazette via the news archive and that the request for the removal of this archived news had been rejected, was not manifestly ill-founded. This part of the application must be declared admissible as there is no ground for inadmissibility.

2. Merits

29.         The applicant maintained that his/her private and business life was affected negatively and his/her reputation was impaired on the grounds that the news, which s/he had not claimed to be fake or made-up and which had concerned the investigations carried out against him/her in 1998 and 1999, were still in the archives and that they were easily accessible.

30.         In its observations, the Ministry stated that the principles adopted in the relevant case-law of the European Court of Human Rights (“the ECHR”) on the right to respect for private life should be taken into consideration.

a.             General Principles

i.               Right to protect and improve one’s spiritual existence

31.         The applicant complains that the news about him/her, which was published in 1998-1999 and was still available on internet, impaired his/her honour and reputation. In that connection, the applicant requested the removal of the news published about him/her in the past from the website, which was subsequently rejected.

32.         Article 17 § 1 of the Constitution provides as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.”

33.         The personal honour and reputation of individuals falls within the scope of the “spiritual existence” provided for in Article 17 of the Constitution. The State is obliged not to interfere arbitrarily with honour and reputation, which form part of an individual’s spiritual existence, and to prevent thirds persons’ attacks on them (see Adnan Oktar (2), no. 2013/1123, 2 October 2013, § 33). In other words, the right to protection of personal reputation falls under the protection of Article 17 § 1 of the Constitution (see Kadir Sağdıç [Plenary], no. 2013/6617, 8 April 2015, § 36; and İlhan Cihaner (2), no. 2013/5574, 30 June 2014, § 42).

34.         The ECHR examines the interferences with personal honour and reputation under Article 8, titled “Right to respect for private and family life”, of the European Convention on Human Rights (Convention). According to the ECHR, the right to protection of personal reputation is a part of the right to respect for private life safeguarded by Article 8 of the Convention (see Pfeifer v. Austria, no. 12556/03, 15 November 2007 § 35; and Axel Springer AG v. Germany, no. 39954/08, 7 February 2012, § 83). In that direction, the right to protection of personal reputation in the face of statements alleged to contain defamation in a newspaper article (see White v. Sweden, no. 42435/02, 19 December 2006, § 19) and an individual’s allegation that s/he was not protected against a critical newspaper article (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005) fall within the scope of the private life.

35.         Even though an individual is criticised via published articles in the context of a public dispute, his/her reputation is a part of his/her identity and spiritual integrity (see Pfeifer v. Austria, § 35) and it is under protection of Article 17 of the Constitution (see Kadir Sağdıç, § 38; and İlhan Cihaner (2), § 44).

36.         On the other hand, in order for the applicability of Article 17 § 1 of the Constitution, the attack on an individual’s reputation must attain a certain level of severity and it must hinder the applicant’s personal enjoyment of his/her right to respect for reputation. In addition, in the event that an individual impairs his/her own honour and reputation due to his/her own actions in a foreseeable way, s/he cannot benefit from the protection provided for by Article 17 of the Constitution (see Kadir Sağdıç, § 39; and İlhan Cihaner (2), §§ 45, 46; for a judgment of the ECHR, in the same vein, see Mater v. Turkey, no. 54997/08, 16 July 2013, § 52).

37.         As stated above, the preconditions for an interference with honour and reputation to be examined within the scope of Article 17 § 1 of the Constitution, namely that the attack on an individual’s reputation must reach to a certain level of gravity and that the interference must not be caused by one’s own action in a foreseeable way, should be taken into consideration differently in respect of internet articles which have been on the Internet for a long period of time. Having regard to the accessibility, widespread use and convenience in the storage and protection of news and ideas thanks to the internet, the news which did not attain a certain level of gravity on the date of publication or which concerned an individual’s own actions, may impair his/her honour and reputation if they stay accessible on the internet for a long period of time.

38.         Publication of news on the internet has a relation with the right to protection of personal data. Indeed, while imparting news on the internet and establishing a connection between the individual and the news, personal data of the relevant individual must technically be processed on the internet. Within the scope of the Code no. 5651, processing of personal data is carried out by content providers which are real or legal persons, who create, modify and provide all types of information or data offered to the users on the internet. In that connection, content providers are the entities which publish personal data on the internet and thus they ensure that the news about individuals are accessible via newspaper archives. The connection between the right to protection of honour and reputation and personal data necessitates that attacks on honour and reputation on the internet must be taken into consideration in connection with the right to protection of personal data.

39.         Article 20 §§ 1 and 3 of the Constitution, titled “Privacy of private life”, provides as follows:

"Everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated. Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent. The principles and procedures regarding the protection of personal data shall be laid down in law."

40.         The right to respect for private life is prescribed by Article 20 of the Constitution. Private life is a comprehensive term which is quite difficult to describe (see Serap Tortuk, no. 2013/9660, 21 January 2015, § 31). The right to respect for private life protects matters such as corporeal and spiritual integrity, physical and social identity, the name of an individual, her/his sexual orientation and sexual life (see Ahmet Acartürk, no: 2013/2084, 15 October 2015, § 46). Subjects such as personal information and data, personal development, family life etc. are covered by this right.

41.         On the other hand, it is prescribed in Article 20 § 3 of the Constitution that everyone has the right to request the protection of his/her personal data and that this right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. The relevant article also provides that personal data can be processed only in cases envisaged by law or by the person’s explicit consent and that the principles and procedures regarding the protection of personal data shall be laid down in law. The term of personal data means all of the information concerning a certain or identifiable individual. The right to protection of personal data aims to protect rights and freedoms of an individual during processing of personal data as a special form of the right to protection of honour and the right to improve one’s own personality freely (see the Court’s judgment no. E.2013/122, K.2014/74, 9 April 2014). In addition, the right to protection of personal data is not only effective during the processing of personal data but it also covers the right to request the correction or deletion after the processing of these data. This right covers not only the personal data processed via public authority but also the personal data processed via real and legal persons.

42.         Accordingly, within the scope of freedoms of expression and the press (see §§ 56-64), the fact that a news published on the internet is accepted to fall within the scope of “right to protect and improve one’s spiritual existence” prescribed by Article 17 § 1 of the Constitution, and the publication of personal data (see Sevim Akat Eşki, no. 2013/2187, 19 December 2013, §§ 30, 3; the Court’s judgment no. E.2011/34, K.2012/48, 30 March 2012; and the Court’s judgment no. E.2009/85, K.2011/49, 10 March 2011) via establishing a connection between the news and the relevant person’s identity necessitate that Article 20 of the Constitution must be taken into consideration. In that connection, it should be borne in mind that the provision in question binds not only the public authorities but also the real and legal persons. The publication, storage, conservation and usage of the identity information qualified as personal data on the internet by real and legal persons outside the public authorities, as is the case in the present application, should be taken into consideration within the scope of the relevant provisions.

43.         It is stipulated in Article 20 § 3 of the Constitution that personal data can be processed only in cases envisaged by law or by the person’s explicit consent. Processing of personal data includes, in a very broad framework, all types of actions on the data such as declaration, recording, transfer, storage and conservation of personal data and providing easy access for it. Thus, all types of processing of personal data which make the news published on the internet accessible should be considered in this context. Even though it was stated that personal data can be processed only in cases envisaged by law or by the person’s explicit consent, it is clear that news which is made within the scope of the freedoms of expression and the press described by the Constitution will constitute an exception in respect of the limitations in question. In that connection, the main issue is to prevent others from remembering the acts of an individual, which were not alleged to be fake and published in the news in the past. Indeed, news and ideas uploaded on the internet within the scope of the freedoms of expression and the press bring about the usage and processing of personal data most of the time. In other words, prevention of access to personal data or news in the news archives on the internet aims to ensure that the acts of individuals are forgotten.

44.         In consideration of the speed of imparting news and ideas and duration and capacity of storage, the internet is an untraditional communication tool which provides global access to knowledge. This electronic communication network providing service to millions of worldwide users without a centre has introduced a new dimension in respect of enjoyment of fundamental rights and freedoms. The opportunities provided for by the internet for the enjoyment of fundamental rights and freedoms also lead to different means of interference with them. Especially, serious domains of interference have emerged regarding the private lives of individuals and their spiritual integrity. For that reason, unlike traditional media, the internet should be evaluated from a different perspective in terms of the risks entailed. A different approach, that will take into consideration the technological developments, must be determined inevitably in order to provide protection and improvement in terms of relevant rights and freedoms.

45.         Prior to the spread of the internet, individuals’ personal lives concerning their past disappeared over time. In addition, even if there were records concerning the pasts of individuals, the difficulty in reaching to these records allowed individuals to live independently of any mistakes made in their past. Today, however, a simple research on the internet easily reveals the mistakes that individuals have made in the past and do not want to be reminded of and/or remember. In that respect, the internet made the archived news, which only researchers or enthusiasts could find through special efforts, easily accessible. The easy access to news archives created a virtual environment which did not allow the news about individuals to be forgotten. Having regard to the widespread usage of internet, this situation increased the chances of individual’s running into the things which they did in the past and don’t want them to be remembered.

46.         This situation caused by the widespread use of the internet, together with the active use of the internet by the press, disrupted the balance between the freedoms of expression and the press and the protection of honour and reputation in favour of the former. Both freedoms of expression and the press and the protection of honour and reputation are fundamental rights and freedoms which require equal protection. For that reason, the disrupted balance between these two fundamental rights must be stricken again. In our days when it is hard to be forgotten due to the internet journalism, the balance in question may only be struck by acknowledging the right to be forgotten in terms of honour and reputation. In that connection, the right to be forgotten is indispensable to strike the fair balance (see the judgment of the Court of Justice of the European Union, Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja Gonzales, C-131/12, 13 May 2014).

47.         The right to be forgotten is not manifestly regulated by the Constitution. However, in Article 5, titled “Fundamental aims and duties of the State”, of the Constitution, a positive obligation is imposed on the State through the expression “to provide the conditions required for the improvement of the individual’s corporeal and spiritual existence”. Within the scope of this obligation, when the right to protection of honour and reputation in terms of spiritual integrity safeguarded by Article 17 of the Constitution and the right to request the protection of personal data safeguarded by Article 20 § 3 of the Constitution are taken into consideration as a whole, it is clear that the State has an obligation to provide a chance to individuals “to make a fresh start” by preventing others from learning their past. Especially, the right to request the deletion of personal data within the scope of the right to protection of personal data involves providing opportunities so that the unfavourable events in the past of the individuals are forgotten. Accordingly, the right to be forgotten, which is not manifestly prescribed by the Constitution, appears as a natural result of Articles 5, 17 and 20 of the Constitution with a view to blocking access to digitally stored news which are easy to access through the internet. In addition, denial of the right to be forgotten makes the interference with maintaining an honourable life and spiritual independence, both required for the improvement of spiritual existence of individuals, permanent on the ground that due to personal data which can easily be accessed via the internet and can be stored for long periods of time, others might be biased against them.

48.         In consideration of the fact that in its decisions concerning the balance between the freedoms of expression and the press and the right to protection of honour and reputation, the Court has made its examinations on the basis of Article 17 § 1 of the Constitution, the claims concerning the right to be forgotten should be examined within the scope of Article 17 § 1 of the Constitution having regard to the relation between the news published on the internet and the personal data.

49.         On the other hand, in cases similar to the present case, where the State does not play a role, it is alleged that the protection provided by the judicial authorities for the applicants’ personal reputation was not enough. Even though Article 17 of the Constitution, in principle, aims to protect individuals against arbitrary interferences of public officials, the article in question does not only ensure that the state avoids these types of interferences. The positive obligations required for providing an efficient respect for corporeal and spiritual existence of an individual in the light of Article 5 of the Constitution can be combined with the negative obligations stipulated in Article 17 of the Constitution. These obligations might necessitate taking some measures with a view to guaranteeing the right to demand the protection of personal reputation in a way that it covers the relationship between the individuals (see Ahmet Çinko and Erkan Çelik [Plenary], no. 2013/6237, 3 July 2015, § 39). These measures might be applied in the protection of personal reputation against the interferences of third parties (see Kadir Sağdıç, § 40; and İlhan Cihaner (2), § 47). Thus, the right to be forgotten is a result of the State’s positive obligation in terms of providing opportunity to individuals to improve their spiritual existence.

50.         It is not possible to expect that the right to be forgotten shall be applied in respect of every type of news in the newspaper archives on the internet. Indeed, it is clear that newspaper archives are important for the researchers, legal experts or historians within the meaning of freedom of the press. In that case, in order to remove a news article from the internet within the scope of the right to be forgotten, following matters should be examined in terms of specific circumstances of every case; the content of the news, duration of publication, whether it is up-to-date, whether it can be regarded as a historical data, public interest (the value of the news in terms of the society, features of the news that shed light on the future), whether the person who is the subject matter of the news is a politician or celebrity, its subject, whether it involves facts or value judgments, and the interest of the community towards the relevant data.

51.         After the examination, various methods can be adopted, facilitating the process of being forgotten. It is laid down in Article 9 of the Code no. 5651, which was amended by the Code no. 6518, that the access to the relevant publication, part and section (URL etc.) shall be blocked and that if it is not obligatory, the access to the whole publication on the internet shall not be blocked.

52.         In that connection, the above-mentioned measures can be taken pursuant to Code no. 5651 with a view to striking the balance between the freedoms of expression and the press and the right to protection of honour and reputation in terms of the right to be forgotten (see § 51). However, these measures must be taken on the basis of the principle of proportionality pursuant to Article 13 of the Constitution. Indeed, several methods can be applied in order to prevent the interferences with honour and reputation pursuant to right to be forgotten such as the removal of personal data that creates connection between the relevant person and the news and which allows research in the archive, anonymization of the news and blocking access to a part of the content of the news. In that connection, it should be taken into consideration that the duty of the judiciary is not to cause the past events to be reported in the news again after complete removal of the news constituting interference with reputation in time by virtue of the conveniences provided by the internet. It should not be forgotten that the news archives on the internet, as a whole, are under the protection of the freedom of the press.

ii.             Freedom of Expression and Dissemination of Thought and Freedom of the Press

53.         The present case concerns the dismissal of the applicant’s request in which s/he demanded that the parts of the news archive on the Internet regarding the applicant removed.

54.         Article 26 of the Constitution, titled “Freedom of expression and dissemination of thought”, reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

Regulatory provisions concerning the use of means to disseminate information and thoughts shall not be deemed as the restriction of freedom of expression and dissemination of as long as the transmission of information and thoughts is not prevented.

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law. "

55.         Article 28 of the Constitution, titled “Freedom of the press”, reads as follows:

The press is free, and shall not be censored. The establishment of a printing house shall not be subject to prior permission or the deposit of a financial guarantee.

 …

The State shall take the necessary measures to ensure freedom of the press and information.

In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply.

…”

56.         The internet, which plays an important role in imparting and receiving news and thoughts, is under the protection of freedom of expression safeguarded by Article 26 of the Constitution. Indeed, the Court has accepted that an interference with access to internet should be examined under the freedom of expression (see Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014; and Youtube Llc Corporation Service Company and Others [Plenary], no. 2014/4705, 29 May 2014). In addition, it is not possible to accept that imparting all kinds of news and ideas through the internet is within the scope of the freedom of the press safeguarded by Articles 28 and 32 of the Constitution.

57.         Having regard to the accessibility, the duration and capacity of storage of news and thoughts and the opportunity of imparting news and thoughts of large volumes, internet plays an important role in the development of imparting news and information to public. The internet provides an opportunity of great importance for everyone to reach news and ideas or disseminate thoughts without any limitations. This situation creates a vast domain in terms of freedom of expression (see Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, § 34).

58.         Whether news and thoughts disseminated within the scope of this vast domain can be considered within the scope of the freedom of the press safeguarded by Article 28 of the Constitution, should be examined in accordance with the specific circumstances of each case. In that connection, even though the freedom of the press laid down by Article 28 et seq. of the Constitution is described primarily within the scope of printed mass media, it is possible that the internet journalism, which constitutes a significant part of the internet, can be considered within the scope of the freedom of the press as long as it performs the role of “public watchdog” which is the fundamental function of the press (see Medya Gündem Dijital Yayıncılık Ticaret A.Ş., § 36).

59.         In the present application, having regard to the fact that the company, which published the news about the applicant on the internet, is a nationally known newspaper published in our country, it can be considered that it performed the role of “public watchdog” due to its familiarity with traditional journalism. Thus, it is possible to consider the news archive web sites in question within the scope of the freedom of the press.

60.         In addition, another matter to be settled is whether the news archive can benefit from the protection provided for by the freedom of the press.

61.         In its judgments, the Court stressed for several times that the freedom of expression covers not only the freedom of dissemination of thoughts and ideas but also the freedom of access to news and thoughts (see Emin Aydın, no. 2013/2602, 23 January 2014, § 40; and Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 34). In that respect, the role of the internet in the society, which facilitates the dissemination of news and thoughts and the public access to them, cannot be ignored. Creating archives serves for the storage and accessibility of the actuality and news to a great extent. Archives of such nature provide sources for history education and research activities due to their direct public access without any cost. Moreover, public access to these archives is a result of the “observer” role which is the primary function of the press in a society (see Wegrzynowski and Smolczewski v. Poland, no. 33846/07, 16 July 2013, § 59; and Times Newspapers Ltd v. United Kingdom (no. 1 and 2), nos. 3002/03, 23676/03, 10 March 2009, §§ 27, 45). For that reason, it is clear that archives on the Internet are within the scope of freedoms of expression and the press. Accordingly, removal of a news archive which is published on the internet and considered to be within the scope of journalism, constitutes an interference with the freedom of the press.

62.         In democracies, the activities and actions of a State should be under the inspection of not only the administrative and judicial authorities but also the public. Printed, audio and visual media guarantees that the democracy functions properly and individuals can realize themselves, by closely inspecting the political decisions, actions and negligence of the bodies with public authority, and facilitating the process of decision making of citizens (see Kadir Sağdıç, § 50). For that reason, the freedom of the press is a freedom which is available for everyone and carries a critical importance (see the Court’s judgment no. E.1997/19, K.1997/66, 23 October 1997).

63.         The ECHR many times underlined the main role played by the press in a democratic society. Although the press must not overstep certain bounds regarding the protection of the reputation and rights of others, its duty is nevertheless to impart information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Bladet Tromso and Stensaas v. Norway [GC], no. 21980/93, 20 May 1999, §§ 59, 62; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, 17 December 2004, § 71).

64.         The freedom of expression and, as its auxiliary, the freedom of the press, which facilitates the enjoyment of the freedom of expression, may be subject to limitations within the scope of the fundamental rights and freedoms laid down by the Constitution. It is stated in Article 28 § 4 of the Constitution that in the limitation of freedom of the press, the provisions of Articles 26 and 27 of the Constitution shall apply. Accordingly, the freedom of the press may be subject to limitations set out by Article 26 which sets out the general provisions concerning the freedom of expression and Article 27 which concerns artistic and academical expressions. Other limitations on the freedom of the press are laid down by Article 28 § 5 and the following sub-paragraphs. The press must comply with the limitations which are set out for “protecting the reputation or rights and private and family life of others” among the limitations laid down by Articles 26, 27 and 28 of the Constitution (see Kadir Sağdıç, § 55; and İlhan Cihaner (2), § 62). In that connection, within the scope of “protecting the reputation or rights and private and family life of others” it should be borne in mind that expanding the scope of the right to protection of honour and reputation may result in a violation of freedoms of expression and the press.

65.         It should be remembered that although the press must not overstep certain bounds regarding protection of the reputation and rights of others, its duty is nevertheless to impart information and ideas on all matters of public interest and that not only does the press have the task of imparting such information and ideas; the public also has a right to receive them (see Kadir Sağdıç, § 51).

66.         For that reason, a balance must be struck between the right to protection of honour and reputation safeguarded by Article 17 § 1 of the Constitution and the freedom of the press safeguarded by Article 28 of the Constitution and the associated freedom of expression safeguarded by Article 26 of the Constitution in respect of the news archive on the internet which was the subject matter of the application, in line with the criteria set out by the case-law of the Court. However, in cases where the past events have been archived, it should be considered reasonable that the balance between two conflicting rights is interpreted in a different manner compared to news concerning recent events. In that connection, the requirement of the press to act with a sense of responsibility in terms of authenticity of the published news (see Kadir Sağdıç, §§ 53, 54; İlhan Cihaner (2), §§ 60, 61) is more strict for old news which concern past events, which don’t require haste and are not obligatory to publish, when compared to recent news. However, when striking a balance, the fact that the news archive is under the protection of Articles 26 and 28 of the Constitution should be taken into consideration.

b.             Application of Principles to the Present Case

67.         In the present case, the news, which was complained of, concerned the criminal proceedings carried out against the applicant in 1998 and 1999. The applicant did not claim that this news was fake or made-up. The applicant maintained that his/her private and business life was affected negatively and his/her reputation was impaired on the grounds that the news was still in the archives and that they were easily accessible through the internet. Even though the 36th Chamber of the Istanbul Magistrate’s Court (abolished) accepted the applicant’s complaint, after its examination, the 2nd Chamber of the Istanbul Criminal Court of General Jurisdiction accepted the objection and rejected the removal of the news from the internet.

68.         The 36th Chamber of the Istanbul Magistrate’s Court decided to remove the news from the internet on the grounds that the news had been made in respect of the applicant about an event in 1998, however, the news had lost its value and actuality, that there had been no use in keeping the news on the agenda, and that in its current situation the news had been impairing the private life of the applicant. The 2nd Chamber of the Istanbul Criminal Court of General Jurisdiction accepted the objection against the decision on the grounds that the archived news in question had not included any content violating the honour and reputation of the applicant, that it was in accordance with the apparent truth and that no expression or sentence attacking the personal rights of the applicant had been used.

69.         In the present case, a fair balance must be struck between the right to honour and reputation which was interfered due to the fact that the news was still on the internet, and the freedoms of expression and the press which will be violated in case of the removal of the relevant content. While striking a balance in the present case, an important matter which should be taken into consideration is that on one side there are the right to protection of honour and reputation and the right to be forgotten and on the other, there is not only the freedoms of expression and the press but also the freedom of access to news and thoughts. The Court bases its examination concerning whether the balance between the rights and freedoms in question is struck, on the reasoning provided by the competent judicial authorities.

70.         As stated above, the right to be forgotten comes into play when the news on the internet impairs the honour and reputation of individuals due to the fact that it has been easily accessible for a long period of time. This right aims to ensure that the necessary delicate balance between the freedoms of expression and the press and the right to improve one’s spiritual existence in consideration of the accessibility of the internet and the opportunities provided by it. Accordingly, this remedy should be employed in a way not impairing the essence of the freedom of the press and the freedom of access to news and thoughts, which protects the news archive on the internet, as well as protecting the interests of the right holder at the same time.

71.         In the present case, the impugned news was published in 1998 and 1999 and was archived. It is clear that the news in the form of newspaper archive are not only digitally archived and they can be kept by the content provider. Having regard to these methods, which allows the news to be accessible on the internet, such as blocking access by deleting personal data by means of an evaluation based on especially the principle of proportionality, it is possible to reach success without completely deleting the archived news on the internet. In that connection, serious interferences with the freedom of the press, that may result in the re-making of the news concerning the past events for the purpose of scientific researches in case of the complete deletion of the digitally archived news, could be prevented.

72.         The news, which was archived on the internet and made easily accessible, concerned criminal proceedings carried out against the applicant in 1998 and 1999. It was not claimed that the news was not true. The news concerned the arrest of the applicant while s/he was using drugs and the subsequent criminal proceedings. In this context, it cannot be said that the subject of the news sustained its newsworthiness, which is required for archived news to be easily accessible, and that it will shed light on the future.

73.         The news in question concerned an event which took place 14 years ago as of the date of the application, and thus it is clear that it lost its actuality. It cannot also be said that easy access to the news concerning drug use on the internet for historic, statistical and scientific researches is obligatory. In that respect, it is clear that the easy access to the news on the internet about the applicant who was not a politician or famous person in view of the public interest impairs the applicant’s reputation.

74.         In conclusion, the news in respect of the applicant should be taken into consideration within the scope of the right to be forgotten. Having regard to the opportunities provided by the internet, access to the news in question should be blocked in order to protect the applicant’s honour and reputation. In that respect, it cannot be said that the dismissal of the request for blocking access struck a balance between the freedoms of expression and the press and the right to protection of spiritual integrity.

75.         Consequently, the Court has found a violation of the applicant’s right to protection of honour and reputation.

3. Application of Article 50 of Code no. 6216

76.          Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

"1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.

2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

77.          The applicant did not claim compensation but requested the redress of the violation.

78.          The Court has found that the applicant’s right to protection of honour and reputation was violated.

79.          A copy of the judgment must be sent to the Istanbul Chief Public Prosecutor's Office so as to be sent to the magistrate judge who was appointed in place of the 36th Chamber of the Istanbul Magistrate’s Court (abolished) to redress the violation.

80.          The court fee of 198.35 Turkish liras (TRY) and the counsel fee of TRY 1,800, which are calculated over the documents in the case file, must be reimbursed to the applicant.

V. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 3 March 2016 that

A.            The applicant’s request for confidentiality as to his/her identity in the documents accessible to the public be ACCEPTED;

B.            The alleged violation of the right to protection of honour and reputation be DECLARED ADMISSIBLE;

C.            The right to protection of honour and reputation safeguarded by Article 17 § 1 of the Constitution was VIOLATED;

D.            Since there is legal interest in holding a retrial to remove the consequences of the violation of the applicant’s right to protection of honour and reputation, a copy of the judgment be SENT to the Istanbul Chief Public Prosecutor's Office so as to be sent to the magistrate judge who was appointed in place of the 36th Chamber of the Istanbul Magistrate’s Court (abolished) to redress the consequences of the violation;

E.             The total court expense of TRY 1,998.35 including the court fee of TRY 198.35 and the counsel fee of TRY 1,800 be REIMBURSED to the APPLICANT;

F.             The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and

G.            A copy of the judgment be SENT to the Ministry of Justice.

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(N.B.B. [GK], B. No: 2013/5653, 3/3/2016, § …)
   
Case Title N.B.B.
Application No 2013/5653
Date of Application 22/7/2013
Date of Decision/Judgment 3/3/2016
Official Gazette Date/Issue 24/8/2016 - 29811
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


 

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to protect and improve one’s corporeal and spiritual existence Right to be forgotten Violation Re-trial

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 9
93
3
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