According to the Article 9 of the Law No. 5651; in case of sharing contents such as videos, pictures, news, and comments on the social media in a way that violates the personal rights of a person; the person whose personal rights are violated may request from the Penal Judiciary for removal of the relative content and/or the blocking of access. Violation of personal rights is legally accepted as a tort act that committed against an individual. Even if this tortious act does not constitute a crime, a decision to block access and/or removal of the content shall be made due to any violation of personal rights made over broadcast. In this study, the conditions for blocking access and/or removal of the contents for future information and communication shall be examined within the scope of Law No. 5651.
To begin with, personal rights are the rights related to all values such as life, body integrity, name, surname, photographs, and the right of privacy of a person.[1] Therefore, we may easily say that the personal rights are the rights that are non-derogable and serve to improve one’s dignity and personal character in society. In this context, honor and dignity are the main personal values within the scope of personal rights. It refers to values such as one’s ability, social position, reputation in the family and society. Hereby, most of the violations of personal rights which occur through social media are directed against the honor and dignity of the person. As a matter of fact, it is impossible to count the values within the scope of the personal right one by one and thereby these values are not subject to the limited number principle.
Personal rights are protected by both international and national legal sources. The European Convention on Human Rights and Universal Declaration of Human Rights dated 1948 are the examples of the measures taken by countries to preserve the personal rights. In Turkish law, Article 12 of the Constitution states that “Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable.”[2] Similarly, although the legislation regarding the personality violations on the internet is insufficient, personal rights in Turkish law are also regulated by the Turkish Penal Code and Turkish Civil Code. In this respect, Law No. 5651 aims to prevent violations of personal rights on the internet.
Removal of the content and/or blocking of access due to violation of personal rights is regulated under the Article 9 of the Law No. 5651. Accordingly, once a content including videos, photographs, news or comments are shared on the Internet and especially social media violates the personal rights of a person, the person whose right is violated may request from the Penal Judiciaries aforementioned rights. In this context, the competent court is the Penal Judiciaries. Later, decisions made by the Penal Judiciaries are sent directly to the Internet Access Providers Union (“IAPU”). The decision of IAPU, to block access and/or content removal sent to the access provider to execute within 4 hours at the latest.
Moreover, the person claiming that his/her personal rights has been violated may apply to the provider of the content in question, if could not reach, the removal of the content may also request from the hosting provider. They must respond within 24 hours from receiving of the request.
Apart from that, even it is not directly related to the violation of personal rights, in some cases it may be related regarding to blocking access or content removal procedure; according to the 4th paragraph of the Article 8 of the Law No. 5651, the head of Information Technologies and Communication Institution has the authority to decide to remove the content and/or block access in some cases without the requirement for a court or prosecutor’s decision. If an example shall be given, if the content or provider of the broadcasts constituting the crimes specified in the aforementioned law is abroad or if there is sufficient suspicion of sexual abuse of children. However, this authority is defended and mostly accepted as unconstitutional in the doctrine.[3]
Once the decision is made regarding the rejection of the request for blocking access made based on the 9th Article of the Law No. 5651, the decision becomes final if the objection is filed and the objection request is rejected or if the objection is not made within the time limit which is 7 (seven) days.
First of all, it would be appropriate to define social media which are interactive technologies that facilitate the creation and sharing of information, ideas, interests, and other forms of expression through virtual communities and networks.[4] Furthermore, it is a system that enables two-sided and simultaneous information sharing from one-way information sharing. Correspondingly, thanks to these developments social media brings up several legal issues and disputes that concern society and individuals. It shall be accepted that individuals are under legal and criminal responsibility for every sharing and other activities through social media since while people using such platforms, they may engage in unlawful activities. The reason behind that due to the features of social media such as being open to all and accessible to everyone, not requiring the special and technical knowledge for use and even being inexpensive the number of people who may commit these violations through social media is quite high. Consequently, it is necessary to protect personal rights quickly and effectively against such violations.
It is also emphasized violation of the privacy of private life which is a type of violation of personal rights encountered in social media. As a result of sharing personal data like photos and videos taken in places, entertainment venues and events related to the private lives of individuals on social media, it may be captured for advertising purposes and may lead to violation of personal rights.
To conclude, since social media is generally free to use, open to everyone, easily accessible and usable by everyone and most of the users is unable to clearly draw the sharing limits in these channels, leading to violations of personal rights.
As previously stated above, in case of violation of personal rights on the internet and especially social media, a special protection procedure is envisaged by Law No. 5651. Those who claim that their personal rights have been violated due to publications on the internet shall be able to apply to the judiciary within the scope of the Article 9 of the aforementioned law. In this context, the applicants were granted the right to request from judge the removal of the content from the publication as well as to block access. Even though these legal solutions are regulated by the law, individuals shall also have the necessary awareness in terms of morally regarding the not violating personal rights.
[1] Rona Serozan, “Some Aspects on the Protection of Personal Rights,” Istanbul University Journal of Comprative Legal Studies 11, no. 14 (1977)
[2] https://www.anayasa.gov.tr/en/legislation/turkish-constitution/
[3] https://www-lexpera-com-tr.lproxy.yeditepe.edu.tr/literatur/tezler/kisilik-hakkinin-internet-ortaminda-ihlali
