Press Release No: Individual Application 37/16
24.08.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF N.B.B. ON THE RIGHT TO BE FORGOTTEN

The Constitutional Court held, at its plenary meeting on 3/3/2016, with regard to the individual application lodged by N.B.B. (application no. 2013/5653) that there had been a breach of the right to honour and reputation guaranteed under Article 17 of the Constitution.

The Facts

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.

The Applicant’s Allegations

The applicant maintained that there had been a violation of his rights guaranteed under Articles 12, 17, 20, 25, 26, 27 and 32 of the Constitution on the ground that his requests for rendering the news reports, which were related to the incident in which he had been sentenced to a judicial fine and were still on the web-sites, inaccessible were dismissed by the judicial authorities. 

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

In the present incident, a fair balance must be struck between the right to honour and reputation in which there was interference on account of the availability of the news reports on the web-sites and the freedom of expression and the freedom of press which would be interfered with when the impugned contents were made unavailable. A significant issue that must be taken into account in assessment of such balance in the present incident is the fact that not only the freedoms of expression and press but also the individuals’ freedom of receiving news and ideas are in question vis-à-vis the right to honour and reputation and the right to be forgotten. The Constitutional Court makes its assessment as to whether a fair balance has been struck between the above-mentioned rights and freedoms on the basis of the grounds set forth by the competent judicial authorities. 

The right to be forgotten comes into question in the event that easy-accessibility of a news report for a long time on web-sites has impaired an individual’s honour and dignity. The aim of this right is to ensure that a necessary delicate balance be struck between the freedoms of expression and press and the individuals’ right to develop their spiritual entity due to widespread use of and the opportunities provided by internet. Hence, this means must be used in a way which would not infringe upon the very essence of the freedom of press and the individuals’ freedom of receive news and ideas, taking the news archive under protection on the internet, and which would, at the same time, protect the interests of the right owner.

In the present incident, the impugned news reports were published in 1998 and 1999 and they are now in the form of archive. As to the news reports which are saved in the newspaper achieve, it is obvious that archive is not only established in digital environments but also saved by the content provider. Given especially the methods by which personal data, which makes the news reports accessible on the internet, are deleted and blocked through an assessment to be made on the basis of the proportionality principle, it is possible to reach the desired conclusion without completely deleting the news report which constitute the archive of the relevant newspaper. In this respect, severe interferences in the freedom of press which would result, in terms of scientific researches, in re-writing of the incidents taking place in the past by means of completely deleting the digital news archive may be prevented.

The news reports concerning the applicant, saved in the archive available on the internet and thereby easily accessible are related to the criminal proceedings conducted in 1998 and 1999. It was not maintained that these news reports were contrary to facts. The news reports are concerning the arrest of the applicant while taking drugs and his subsequent trial. In this respect, it may not be mentioned that the subject-matter of the news reports in question is still newsworthy in social terms or is such as to cast light on the future, which are the criteria for rendering the news reports easily accessible in the archive.

As of the application date, the news report in question is concerning an incident taking place approximately fourteen years ago and is no longer up-to-date. In terms of statistical and scientific terms, there is no ground necessitating easy-accessibility of such information on internet for the above-cited reasons. Accordingly, it is obvious that the easy-accessibility of the news reports which were concerning the applicant, who is neither a political nor a mediatic figure, and which were available on the internet impairs the applicant’s reputation.

Consequently, the news reports published concerning the applicant are the ones that must be assessed within the scope of the right to be forgotten. Given the facilities provided by the internet, the access to the news reports in question must be denied for protection of the applicant’s honour and reputation. In this respect, it cannot be mentioned that a fair balance has been struck between the freedoms of expression and press and the individual’s right to protect his spiritual entity by dismissing the applicant’s request for denying access to the news reports in question.

For the above-mentioned reasons, the Constitutional Court has held that there was a breach of the applicant’s right to honour and reputation guaranteed in Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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