Press Release No: Individual Application 33/17


On 5 October 2017, the First Section of the Constitutional Court found no violation of the right to respect for private life guaranteed in Article 20 of the Constitution in the application lodged by Birsen Berrak Tüzünataç (no. 2014/20364).

The Facts

The applicant, who is a famous actress, developed an intimacy with another prominent actor (Ş.G.) at her terrace, and video images of this intimacy were broadcasted through a television channel. The applicant brought an action for compensation against the media outlets before the 13th Chamber of the Istanbul Civil Court (“the Civil Court”). Emphasizing that she was a high-profile individual, the applicant alleged that her honour and dignity were tarnished due to broadcasting of her private video images and photos which had been recorded and taken by zoom-in method without her consent when she was at her terrace and that unacceptable allegations were made in the broadcast, which harmed her reputation.  

 The Civil Court dismissed the action on the grounds that the applicant was a well-known actress in the art world and her life style and reputation were of interest to magazine programmes; that there was proportionality between the impugned incident and the way in which it was broadcasted; that the news reflected the truth; and that the broadcast did not contain any statements that would impair the applicant’s honour and dignity. In its dismissal decision, the Civil Court also underlined that these video images were recorded not by means of trespassing on her house, but from a street which was open to public. This first instance decision was upheld by the Court of Cassation.

The Applicant’s Allegations

The applicant maintained that terrace was not considered as a public area by the Court of Cassation and that while making comments and informing public, the media must not infringe personal rights of other individuals. She further asserted that she had suffered from psychological breakdown due to broadcasting of these video images, which went beyond the limit of the freedom of the press and damaged her personal rights. She accordingly alleged that there was a breach of the right to respect for her private life.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

Broadcasting in the present case is a dispute between the applicant and the private TV channel establishment and there exists no action attributable to the State. Therefore, the present case must be examined within the scope of the positive obligations imposed on the State by virtue of Article 20 of the Constitution.

In principle, the right to respect for private life enshrined in Article 20 of the Constitution not only prohibits the State from interfering with this right but also imposes on the State the positive obligation to protect private life of an individual against interferences by third parties.

It is explicit that the video records belonging to the applicant fall within the scope of her private life which is a part of her personality. Broadcasting of these video images through a TV programme constitutes an interference with the applicant’s right to respect for her private life. However, this interference results from the enjoyment of the rights to make news and to criticise, which fall into the scope of the freedom of the press. Therefore, in determining whether the interference constitutes a violation, it must be assessed whether a balance was struck between the applicant’s right and the freedom of the press, which is the ground for this interference.  

The applicant is a famous actress. It is a known fact that a certain part of the society is curious about the private lives of celebrities. Therefore, making news and criticisms about their private lives to a certain extent must be welcomed with tolerance in a democratic society. It must be remembered that the safeguards to be provided for a celebrity with respect to her/his private life are lesser than those provided for an ordinary person. Accordingly, it can be said that there is a public interest in making news and criticisms about the private life of a celebrity by means of media outlets in order to satisfy the curiosity of some part of the society. However, this cannot be construed to mean that all details of the private life of a celebrity can be subject to news. The fact that a celebrity is a public figure does not lead to the conclusion that her/his private life falls out of the protection of Article 20 of the Constitution. At this point, in the present case, the applicant’s own act and conduct and the manner in which the applicant’s images were obtained are of great importance.

In the examination of the video images, it can be seen that they were recorded from downstairs and showed a very small part of the terrace which can be seen from below. In this case, there is no reason to depart from the conclusion reached by the Court that the video images were recorded from the street. It can be understood that the applicant’s intimacy with her partner at that part of the terrace could be seen without a special effort by the people standing at the point where the camera was recording. Regard being had to the fact that the applicant, of her own accord, preferred to develop an intimacy with her partner at a part of the terrace that could be seen from the outside, it is considered that the applicant did not act responsibly enough to protect her privacy and failed to fulfil her responsibility.

It is acceptable that the reporter found the intimacy between the applicant, who is a celebrity, and Ş.G. newsworthy. Recording of the video images constitutes a sensitive issue in terms of the applicant’s personal rights. However, considering that the video images were recorded from a public area (street) −without entering the applicant’s house− and that the recorded persons were celebrities, the act of the reporter is found to fall into the scope of the freedom of the press. Furthermore, when the content of the images is examined, it is seen that they only showed the intimacy between the applicant and Ş.G., and it did not contain elements leading them to feel discomfort to an unacceptable extent.

In this sense, in view of all assessments above and the margin of appreciation enjoyed by the relevant courts while balancing different interests, it was concluded that the positive obligations set out in Article 20 § 1 of the Constitution were complied with and a reasonable balance was struck between the applicant’s right to protection of her private life and the respondent party’s freedom of the press.

In conclusion, the Constitutional Court held that the applicant’s right to respect for her private life safeguarded by Article 20 of the Constitution was not violated.

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

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