Liability of Website Operators for User Comments

REPUBLIC OF TÜRKİYE

COURT OF CASSATION

4TH CIVIL CHAMBER

Merits No: 2013/18163

Decision No: 2014/12640

ACTION: Upon the lawsuit filed by the counsel for Plaintiff S. K. against Defendant ... A.Ş. on 13.02.2012 claiming non-pecuniary damages based on the violation of personal rights, following the trial conducted, the decision rendered by the Court on 27.06.2013 for the dismissal of the lawsuit was requested by Plaintiff’s counsel to be examined on appeal with a hearing within due time. Upon the notification issued for the hearing date previously set for 30.09.2014, the counsel for the appealing plaintiff and the counsel for the respondent defendant appeared. The open hearing commenced. Following the decision to accept the appeal petition, which was determined to be filed within due time, and after listening to the oral statements of those present, the parties were informed that the hearing was concluded. Examination of the file commenced. The papers within the file were examined together with the report prepared by the Reporting Judge, and the necessity was deliberated:

JUDGMENT:

The lawsuit pertains to a claim for non-pecuniary damages based on the violation of personal rights. The Court decided to dismiss the lawsuit; the judgment was appealed by the plaintiff.

The plaintiff stated that he served as the hotel manager at the Istanbul branch of the Hilton group between September 1, 2007, and June 16, 2011; that pursuant to the organization contract signed between the defendant company and Hilton Istanbul on January 31, 2010, the two-story hall within the Hilton hotel was allocated to the defendant company for the night of February 12, 2011, and the event area was delivered to the defendant company on February 12, 2011, at 15:30; and that following the event, on the website named www...com owned by the defendant company, the plaintiff and the hotel were subjected to unfair, baseless, and disproportionate accusations and attacks, were mocked, and were called chauvinist, fascist, and Nazi, thereby requesting compensation for his non-pecuniary damage.

The defendant defended that a decision for the dismissal of the lawsuit should be rendered.

The Court decided to dismiss the lawsuit on the grounds that the defendant is a hosting provider (yer sağlayıcı) whose liability is determined under Law No. 5651; that upon being notified of unlawful content, it is obligated to remove the content from publication; that the identities of the authors of the subject articles could not be identified; and that the defendant hosting provider bears no liability for the articles.

As stated in the European Court of Human Rights decision of 10.10.2013 in Delfi AS v. Estonia, in cases where users can register as members and post comments on the site without even stating their names, it is not equitable to expect the victim to identify these individuals; holding the company owning the site liable for the comments on the site is practical and reasonable, and holding it legally liable does not violate freedom of expression.

From the scope of the file, it is understood that offensive and derogatory expressions were used against the plaintiff on the website owned by the defendant company starting from February 2011; that a warning was issued via a notice dated February 28, 2011, specifying the name of the plaintiff alongside the company he worked for, valid for him as well; that despite this, the notice-and-takedown (uyar-kaldır) mechanism was not operated and publication continued for a long period, exceeding the principle of reasonable duration; and furthermore, that the defendant site owner bears a duty to monitor the content of comments. Indeed, it is the site owner who prepares and makes available the environment suitable for the occurrence of the tortious attack causing the damage. Furthermore, in such circumstances, the type of liability of the site owner is strict liability (kusursuz sorumluluk).

Under these circumstances, while a decision should have been rendered for an appropriate amount of non-pecuniary damages by accepting that the plaintiff's personal rights were violated, the dismissal of the lawsuit based on erroneous grounds necessitated reversal.

VERDICT:

For the reasons explained above, it was decided unanimously on 30.09.2014 that the appealed judgment be REVERSED (BOZULMASINA); that the hearing attorney fee of 1,100.00 TL awarded in favor of the plaintiff be charged to the defendant; and that the advance fee collected from the plaintiff be refunded upon request.