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Prohibition of Access due to Violation of Right to Privacy

02 November, 2020

The legal and procedural rules regarding the fight against crimes committed in the cyberspace through the control of content, hosting and access providers are organised in Code no.5651 on Regulation of Publications on the Internet and Supression of Crimes Committed by means of Such Publications (“Code no.5651”).  

The violation of right to privacy is recognised as a crime in Article 134 of the Turkish Criminal Code no.5237. 

A person’s private space can be described as the aspects of her life of which others are not aware, and do not need to be made aware. According to the Court of Cassation, a person’s right to privacy is not limited to her private life incidents that are experienced out of sight, behind closed door and not shared with anyone, but also includes all the personal incidents and information which are not or should not be known to everyonecan be shared with others if desired, and are totally private to that person. As a result, a person’s presence in a public space does not mean that consent has been given to having her voice or image recorded, watched, listened to, and kept indefinitly and without permission. The principle of “not attracting attention, being unknown and unrecognised in the crowds” is still valid when in public space. All the information gathered on a person pursuant to constant supervision and surveillance to determine things done, places visited, reasons, timing, location and other participants of meet-ups or undoubtably private activities that the person would not want others to see or know are all included within the definition of private life. However, events and information which are not continuous, and which do not belong to the private space are not regarded as part of itIn conclusion, when determining whether an event or information will be included in a person’s private space, factors such as societal status, occupation, duties, consent and foresight, social relations, charactetistics of physical environment, being a public figure, actions affecting others and proportionality of intervention should be taken into consideration. [1]

As per Article 9/A of Code no.5651, people claiming that their right to privacy has been violated due to publications on the internet can request prohibition of access by applying personally or through their lawyer to the Information Technologies and Communication Organisation (“ITCO”). The ITCO application should state, in a complete and detailed manner, the details of the said publication, the way in which violation has occurred, and that the applicant’s right to privacy has been violated 

Following the application to ITCO, the request is sent to Access Providers Union (“The Union”). The Union, then, sends the request to the access provider in question. Finally, the access provider fulfills the request in 4 hours. In cases where prohibition of Access should not be delayed, ITCO can also directly prohibit access, upon ITCO President’s order.   

Importantly, the request of prohibition of access should be submitted to the Criminal Judgeship (“Sulh Ceza Hakimliği” in Turkish) within 24 hours. If the submission to the Criminal Judgeship is not made following the application to ITCO, the prohibition of access will be lifted automatically. The Criminal Judgeship declares its judgment on whether the publication violates the right to privacy within 48 hours and directly sends it to ITCO. 

The ITCO President’s order to directly prohibit access should also be submitted for approval to the Criminal Judgeship within 24 hours. The Judgeship declares its judgment in 48 hours. Per Code no.5271 on Criminal Procedure, ITCO can contest the Criminal Judgeship’s decision 

[1] Court of Cassation 12. CD., E. 2015/13813, K. 2016/8242, T. 10.5.2016

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