If you want to pay by credit card
REPUBLIC OF TÜRKİYE
COURT OF CASSATION
GENERAL ASSEMBLY OF CIVIL CHAMBERS
Merits No: 2014/4-56
Decision No: 2015/1679
Date of Decision: 17.06.2015
SUMMARY: The lawsuit pertains to a claim for damages based on an attack upon personal rights. The plaintiff is the victim of a successive sexual assault offense committed by abusing influence provided by public duty or service relationship. At the date of the act occurring in 2006, the plaintiff was unmarried, and the act she was subjected to is impactful regarding her future. Following the trial conducted, the defendant who was a public official received a penalty. Upon examination following the appeal request, the judgment was affirmed in 2009.
The victim plaintiff explicitly explained how the sexual assault occurred both during the preliminary investigation and the trial, and these explanations were naturally incorporated into the text of the judgment. The judgment was included in a book published in April 2010 without anonymizing the names of the victim and the defendant. It must immediately be expressed that the plaintiff's name appearing in a book without her consent holds the nature of personal data.
Furthermore, the following must also be expressed: when definitions of the right to be forgotten are examined, although it has been regulated for digital data, when characteristics of this right and the relationship between this right and human rights are taken into account, it is clear that it must be accepted not solely for personal data in the digital environment, but also regarding personal data kept in places easily accessible to the public.
The plaintiff desires a bad incident experienced in the past to be erased from societal memory. Through the right to be forgotten, she desires the opportunity to freely shape her future by forgetting a tragic incident experienced in her past—in other words, to open a new page in her life. Moreover, the plaintiff persistently emphasized this request in her petitions submitted during the trial. Through the right to be forgotten, the plaintiff desires her personal data regarding her private life not to be known by third parties and to be erased from societal memory due to the elapsed time.
When evaluated in this context; where the name of a person who is the victim of an incident occurring 4 years ago is included in a book by being written explicitly, it must be accepted that the right to be forgotten and, as a result thereof, the privacy of the plaintiff's private life has been violated. Therefore, taking into account that the inclusion of the plaintiff's name in the book without being anonymized violated the right to be forgotten and, as a consequence thereof, the privacy of private life, it is mandatory to accept that conditions for non-pecuniary damages in favor of the plaintiff have materialized.
At the conclusion of the trial conducted due to the "non-pecuniary damages" lawsuit between the parties; upon the appeal by counsels for the parties against decision dated 11.04.2011, Merits No. 2010/399, Decision No. 2011/172 rendered by the İzmir 3rd Civil Court of First Instance regarding partial acceptance of the lawsuit, by decree of the 4th Civil Chamber of the Court of Cassation dated 08.11.2012, Merits No. 2011/7193, Decision No. 2012/16450:
*(...The lawsuit pertains to a claim for non-pecuniary damages due to a tortious act. A portion of the claim was accepted by the local court; the judgment was appealed by the parties.
Plaintiff's counsel stated that as a result of the trial conducted in the criminal case wherein his client complained of the offense of sexual harassment, following appeal of the court judgment, the decision rendered by the Court of Cassation was published in the six-volume work titled Annotated-Applied Turkish Penal Code belonging to the defendants by explicitly writing the names of his client and other persons; that this situation constitutes an attack upon personal rights, thereby requesting the defendants to be held liable for non-pecuniary damages.
Defendants' counsel requested dismissal of the lawsuit, stating that the subject books hold the character of a scientific work, that lawsuits are named with plaintiffs' names in European Court of Human Rights judgments, that the book does not appeal to broad masses, is read by criminal judges, prosecutors, and criminal defense lawyers, and that specifying names in the book is not contrary to law.
The Court decided on partial acceptance of the lawsuit on the grounds that names of the plaintiff and other persons were written explicitly without coding in the mentioned work; that explicitly specifying names in the narration of the subject incidents provided no benefit to the book content, and considering the sensitivity of the incident where plaintiff's name appeared and the Turkish social structure, explicitly specifying plaintiff's name with this type of incident in a book distributed and sold nationwide damaged plaintiff's personal rights and placed the plaintiff in a difficult position against her environment.
Scientific knowledge, due to its characteristics, possesses the quality of being the supreme value and form of idea production, and above all, is considered an important instrument in terms of humanity reaching reality. This situation requires scientific knowledge and the researcher producing it to reside within a broad sphere of freedom. Freedom of science, which encompasses rights to freely learn, research, disseminate, and teach science, is regulated among personal rights in the Constitution (Article 27). The cited article provides that everyone has the right to freely learn and teach, express, disseminate science and art, and conduct research on these matters. Likewise, Article 13 of the EU Charter of Fundamental Rights includes the phrase "The arts and scientific research shall be free of constraint. Academic freedom shall be respected." In this context, scientific freedom is a subjective fundamental right granted to all individuals conducting or desiring to conduct a scientific activity, strictly attached to the personality of these individuals.
Freedom of science, which enters human rights instruments due to its importance, encompasses freedom of research, the right to possess tools and environment mandatory for research, and freedom of scientific production or the right to inform and publish. Within this framework, a scientist shall possess the right to conduct research using scientific methods and the right to disseminate results of this research, as a rule encountering no external obstacle on these matters. Indeed, material and moral obstacles encountered on these matters shall be eliminated by the state.
Scientific works, which constitute a sub-category of freedom of thought but—as a natural consequence of special effort or labor in their production—must be considered more systematic and profound compared to ordinary thought, as a rule recognize limits only within the framework of their own principles, and exceptionally can be restricted only in the probability of a danger directed at human life. Restrictions made by going beyond this will be capable of preventing society from meeting scientific thoughts, and consequently capable of obstructing reaching reality. In this respect, scientific freedom requires benefiting from a more absolute regime of freedom compared to other intellectual freedoms in terms of legal regime and sanctions. However, as in all freedoms, scientific freedom is also not unlimited. In cases where freedom of science and personal values of individuals confront each other, one of these two values brought under protection shall be required to be held superior to the other according to facts in the concrete case.
In the incident subject to lawsuit; within the scope of scientific research freedom, the Court of Cassation judgment which gained publicity and became public property was published in the six-volume book titled Annotated-Applied Turkish Penal Code, which is a product of scientific work authored by the defendants, without coding names of parties. Considering that the mentioned work is a study of scientific nature, that defendants cannot be held liable pursuant to above-explained principles due to the Court of Cassation decision made public taking place as it is in a book that is a product of scientific work, that the balance of competing interests was not disrupted against the plaintiff, and that this incident will not constitute an attack upon plaintiff's personal rights, while a decision for total dismissal of the lawsuit ought to have been rendered, establishing a decision in written form was not compliant with procedure and law...)*
and was set aside on these grounds and remanded to its place; at the conclusion of the retrial, the Court resisted (direnme) in its previous judgment. Upon understanding that the resistance judgment was appealed within due time upon examination by the General Assembly of Civil Chambers and after reading papers in the file, the necessity was deliberated:
The lawsuit pertains to a claim for damages based on an attack upon personal rights.
Plaintiff M. T.'s counsel summarized in the statement of claim bearing fee date 16/08/2010 that: "his client has been serving as a prosecution records clerk at the İzmir Courthouse since 14/11/2003; that she was assigned between 18/07/2005 and 11/04/2006 to work with Z., who was serving as İzmir Deputy Chief Public Prosecutor at that period, but after starting, she was confronted with verbal and physical harassment by the Deputy Chief Public Prosecutor for 8 months; that upon physical harassment starting and this situation becoming unendurable, the plaintiff filed a complaint, making efforts so that her family and environment would not hear; that an investigation was initiated regarding Z. and he was penalized; that because the defendant was Deputy Chief Public Prosecutor, incidents were reported in the press at that period; that during a period when the plaintiff began to forget these incidents, defendants who were President and reporting judges of the 4th Criminal Chamber of the Court of Cassation published a six-volume work titled Annotated-Applied Turkish Penal Code in April 2010; that on page 3262 where sample Court of Cassation judgments begin and in subsequent pages, incidents that befell the plaintiff were narrated clearly by explicitly writing names of all actors and the entirety of the incident; that upon plaintiff learning of this situation, plaintiff entered psychological depression again and was forced to relive all bad incidents again; that due to working at the courthouse, this incident was heard in plaintiff's environment by prosecutors and lawyers; that an incident which his client was able to hide—even if with difficulty—was announced to the public, her chastity became debated, and dreams and future of a young girl were darkened; that the work is not a work to be utilized once, but possesses a nature to be read by wide masses over long years; thereby requesting the collection of the subject volumes where plaintiff's name appears on all these grounds, and a decision for collection of 50,000.00 TL non-pecuniary damages from defendants."
Defendants O. Y., H. T. G., M. A., and A... Ltd. Co. counsel summarized in the answer petition bearing reference date 11.10.2010 that: "The subject books hold the character of a scientific work; that having perpetrator and victim names in books holding scientific work character is not contrary to law; that source of books in criminal law consists of judicial decisions; that it does not appeal to wide masses, is read by criminal judges, prosecutors, and criminal defense lawyers; that specifying names in a book is not contrary to law; that because facts regarding persons named in the work were previously subject to trial, they were heard and learned by persons in places where relevant courts were located; for this reason mentioned facts were not brought to agenda for the first time in the work subject to lawsuit; that ECtHR decisions and Constitutional Court decisions are also published without removing names; that starting from beginning of 2011, personal data in decisions in the UYAP system were made accessible to judges and prosecutors without anonymization; that although anonymization was made in the final section of the subject decision, failure to do so in the first section was a typesetting error; that during investigation conducted by inspector arriving at the courthouse upon the incident, the entire courthouse learned of the incident and the incident was reflected in the press; likewise matters asserted by plaintiff were subsequently corrected and a corrected copy was submitted to plaintiff's counsel, therefore there was no need to collect the book and requested damages were exorbitant, defending and requesting dismissal of the lawsuit."
Upon appeal by parties against the court decision regarding partial acceptance of the lawsuit, it was set aside by the Court of Cassation decree written in the header section above; request for correction of decision was rejected by majority vote; court resisted by repeating previous grounds; counsel for defendants brought the judgment on appeal.
The dispute brought before the General Assembly of Civil Chambers concentrates on the point of whether explicitly writing defendant's name without anonymizing and without obtaining consent in a decision taking place in the work prepared for publication by defendants O. Y., H., and M. A. and printed by defendant A... Ltd. Co. constitutes an attack upon personal rights.
Before entering the merits of the matter, it was discussed as a preliminary issue whether it was necessary to remand the file to its court to determine whether appeal fee for plaintiff's petition dated 13.01.2014 was collected, and the following conclusion was reached:
The reasoned decision was served upon plaintiff's counsel on 09.12.2013. Although there was no petition submitted to court by plaintiff's counsel after 15-day statutory appeal period expired, a memorandum was written by chief clerk on 25.12.2013 (Wednesday) to collect appeal fee from plaintiff. However, collection receipt regarding collection of appeal fee is not present in file. In other words, an appeal petition belonging to plaintiff whose fee was deposited within due time is not present in file. Appeal petition belonging to defendants was served upon plaintiff's counsel on 30.12.2013. After 10-day statutory cross-appeal period expired on 09.01.2014 (Thursday), plaintiff's counsel (petition date: 13.01.2014 Monday, reference date: 13.01.2014) submitted a response to appeal petition, requesting affirmation of resistance decision and sending file to 4th Civil Chamber of Court of Cassation for examination regarding lower amount. For this reason, it was accepted unanimously that there was no need to remand file due to petition submitted by plaintiff after passing both principal and cross-appeal periods.
Coming to the merits of the matter; if statutory legislation effective in resolution of dispute is examined;
Relevant articles of the European Convention on Human Rights;
Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Relevant articles of the Constitution of the Republic of Türkiye;
"IX. Freedom of science and arts
Article 27 – Everyone has the right to study and teach, express, and disseminate science and the arts, and to carry out research in these fields freely.
..."
"A. Privacy of private life
Article 20 – Everyone has the right to demand respect for his/her private and family life. The privacy of private life and family life is inviolable.
...
(Additional paragraph: 7/5/2010-5982/2 Art.) Everyone has the right to request the protection of his/her personal data. This right includes being informed about personal data concerning oneself, accessing these data, requesting their correction or deletion, and learning whether they are used in accordance with their purposes. Personal data can only be processed in cases provided by law or with the explicit consent of the person. Principles and procedures regarding protection of personal data are regulated by law."
Relevant articles of the Turkish Civil Code;
"II. Against attack
Principle
Article 24 – Any person whose personal rights are unlawfully attacked may request protection from the judge against attackers.
Every attack made upon personal rights is unlawful unless consent of the person whose personal rights are damaged is justified by a superior private or public interest or exercise of authority granted by law."
At the foundation of the question brought before us lies determining boundaries between the right to be forgotten and, as a consequence thereof, protection of personal data and personal rights versus freedom of science and arts against each other. The point requiring attention in resolution of the question is establishing a fair balance between freedom of science and arts versus fundamental rights of the individual.
Personal data signifies any information relating to an identified or identifiable natural or legal person. Similar definitions take place in Article 2(a) of Directive 95/46/EC of the European Union on Protection of Individuals with Regard to Processing of Personal Data and on Free Movement of Such Data, and Article 2(a) of Council of Europe Convention No. 108 for Protection of Individuals with Regard to Automatic Processing of Personal Data.
Protection of personal data is closely related to human rights. Because disclosure of personal data may primarily violate privacy of private life, as well as damage certain other connected rights.
There is no provision regarding personal data in the ECHR. However, the Court filled content of personal data in its decisions regarding the matter. It must immediately be expressed that numerical limitation of personal data is impossible. However, taking into account jurisprudence and academic publications, identity, economic, and digital information, nationality, opinions, race, political thought, philosophical belief, religion, sect, or other beliefs, membership in associations, foundations, and trade unions, health information, photographs, fingerprints, health data, phone messages, phone book, articles, photographs, voice or image recordings written or shared on social networking sites that reveal identity of individual, make a person specific, and characterize a person can be accepted as personal data.
Protection of personal data increases its importance in our age in parallel with gradual development of awareness of human rights concept and protection. The fundamental purpose of the right to protection of personal data is protecting the person through guaranteeing privacy of individual's private life. The right to protection of personal data, which becomes a gradually quite important matter in information society, confronts us as a requirement of individual being able to personally organize his/her own life through free will in a democratic state governed by rule of law. On the other hand, free development of individual's personality, protection of his/her personality, and creation of a societal order consisting of free individuals is possible only through protection of individual's right regarding personal data. This right, as expressed above, is explicitly regulated in Article 20/2 of the Constitution of the Republic of Türkiye.
Coming to the right to be forgotten; the right to be forgotten and connected matters of storing or keeping personal data as much as required and for the shortest duration actually construct the framework of the right to protection of personal data. At the foundation of both rights lies enabling individual to freely dispose over personal data, make plans directed at future without getting caught on obstacles of the past, and ensuring prevention of personal data being used against the person. Through the right to be forgotten, preventing individual's future from being affected negatively due to an incident experienced in past through own will or caused by a third person is ensured. Enabling individual to shape future by getting rid of negative effects experienced in past is in interest of individual, and its effect on raising development level of society's quality is also indisputable.
The right to be forgotten can be expressed as the right to request negative incidents experienced in the past taking place in digital memory to be forgotten after a period of time, personal data not wished to be known by others to be erased, and its dissemination to be prevented, unless there is a superior public interest.
While this right on one hand provides person "right to control past", "right to request erasure of specific matters from past and not being remembered", on the other hand it imposes upon counterparties obligation to take measures directed at third parties not using or not remembering a portion of information regarding person. It is accepted that this right recognizes right to demand removal of information and photographs that may cause negative comments about them or information regarding past convictions, in addition to encompassing forcing third parties to erase content regarding themselves such as photographs and internet blogs of individuals. On the other hand, this right requires taking measures so that specific aspects in individual's past are not remembered in an impossible manner.
It is expressed that "right to privacy" protected under right to respect for private life taking place in Article 8 of the European Convention on Human Rights (ECHR) also encompasses legal interests of individual being able to control information regarding self. Indeed, individual possesses legal interest regarding non-disclosure, non-dissemination of any information belonging to self without consent, and others not being able to access this information—in short, personal data remaining private. (Gülay Arslan Öncü, Protection of Private Life in European Convention on Human Rights, Beta Publications, Istanbul 2011, p. 182)
Together with providing right to be forgotten to person, privacy of private life will be protected.
When concrete incident is examined within this scope; plaintiff is victim of a successive sexual assault offense committed by abusing influence provided by public duty or service relationship. At date of act occurring in 2006, plaintiff was unmarried and act she was subjected to is impactful regarding her future. Following trial conducted, defendant who was a public official received penalty. Upon examination following appeal request, judgment was affirmed in 2009. Victim plaintiff explicitly explained how sexual assault occurred both during preliminary investigation and trial, and these explanations were naturally incorporated into text of judgment. Judgment was included in book published in April 2010 without anonymizing names of victim and defendant.
It must immediately be expressed that; plaintiff's name appearing in a book without consent holds nature of personal data.
Furthermore, the following must also be expressed: when definitions of right to be forgotten are examined, although regulated for digital data, when characteristics of this right and relationship between this right and human rights are taken into account; it is clear that it must be accepted not solely for personal data in digital environment, but also regarding personal data kept in places easily accessible to public.
Plaintiff desires a bad incident experienced in past to be erased from societal memory. Through right to be forgotten, she desires opportunity to freely shape her future by forgetting a tragic incident experienced in her past—in other words, to open a new page in her life. Moreover, plaintiff persistently emphasized this request in her petitions submitted during trial. Through right to be forgotten, plaintiff desires her personal data regarding private life not to be known by third parties and to be erased from societal memory due to elapsed time.
When evaluated in this context; where name of a person who is victim of an incident occurring 4 years ago is included in a book by being written explicitly, it must be accepted that right to be forgotten and, as a result thereof, privacy of plaintiff's private life has been violated. As explained by Court of Justice of European Union in "Google Judgment", since there are no special reasons demonstrating a superior public interest—in form of important role played by relevant data in public life and intense interest of public directed at relevant data—personal data must not explicitly take place in judgment incorporated into scientific work.
Although minority of members during deliberations argued that there was no need to anonymize names taking place in court judgments, that trial was conducted publicly barring exceptions, judgment was pronounced publicly, therefore privacy of private life was not violated; this view was not accepted by majority of assembly on ground that "question was not names taking place in court judgments without anonymization, but question of whether anonymization was required during incorporation of judgments into book."
Therefore, taking into account that inclusion of plaintiff's name in book without being anonymized violated right to be forgotten and, as a consequence thereof, privacy of private life, it is mandatory to accept that conditions for non-pecuniary damages in favor of plaintiff have materialized.
However, since examination regarding amount of damages was not conducted by Special Chamber, file must be sent to Special Chamber for examination of appeal objections regarding this aspect.
For reasons written above, since local court's resistance decision was found appropriate, it was decided by majority vote on 17.06.2015 that file be sent to 4th Civil Chamber for examination of appeal objections directed at judgment established by court regarding amount of damages.
Share This|
|
