Supreme Court Decision Constituting An Attack On Personality Rights Via The Internet
Republic of Turkey
COURT OF CASSATION
4th CIVIL CHAMBER
CASE NO. 2013/7417
DECISION NO. 2013/10004
DATE OF DECISION: 27.5.2013
Claim for Moral Damages and Provisional Measures (Based on an Attack on Personality Rights on a Website – Necessity of Accepting the Jurisdiction of the Criminal Court of Peace)
VIOLATION OF PERSONAL RIGHTS ON A WEBSITE (Claim for Moral Damages and Precautionary Measures – The Case to be Heard by the Criminal Court of Peace)
COMPETENT COURT (Claim for Moral Damages and Precautionary Measures Based on Violation of Personality Rights on a Website – The Case Must Be Heard by the Criminal Court of Peace)
JURISDICTION OF THE PEACE CRIMINAL COURT (Claim for Moral Damages and Precautionary Measures Based on Violation of Personal Rights on a Website – The Case Must Be Heard by the Peace Criminal Court)
4721/m.24, 25
5651/m.9
SUMMARY: The case concerns claims for moral damages and provisional measures based on an infringement of personality rights. The dispute centers on whether the request to remove the publication constituting an infringement of personality rights from the website by means of a provisional measure, whether requested alone or together with a claim for damages, should be assessed by the court of general jurisdiction. Considering the special regulation in Law No. 5651, it is understood that the court with jurisdiction in this matter is the criminal court of peace. The court must rule that it lacks jurisdiction with regard to the request for a precautionary measure to remove the publication from the website.
CASE: Following the petition filed on October 12, 2012, by the representative of the plaintiff, T.C. Ziraat Bankası A.Ş. General Directorate, against the defendant B. Ç. et al. seeking moral damages, the court ruled at the end of the trial that The appeal petition was accepted after the plaintiff’s representative requested the review of the decision dated February 18, 2013, rejecting the request for a precautionary measure, within the prescribed time limit. The case was reviewed by the examining judge, and the necessary deliberations were made based on the report prepared by the examining judge and the documents in the file.
DECISION: The case concerns claims for moral damages and provisional measures based on an attack on personal rights. The court decided to reject the request for measures in its interim decision dated February 18, 2013, and the plaintiff appealed this ruling.
The plaintiff claimed that the article titled “The Waters Are Not Calm at Ziraat Bank” written by the defendant B. Ç. on the website “www.xxxxxgazete.com” violated his personal rights and requested compensation from the defendants for the moral damage he suffered and a provisional measure decision to remove, stop, and prevent the unlawful publication.
In its interim decision dated February 18, 2013, the court ruled to reject the request for precautionary measures on the grounds that the case was still pending and that the request for precautionary measures was of a nature that would resolve the merits of the case.
The dispute centers on whether the request for the removal of the publication constituting an infringement of personal rights from the website by means of a precautionary measure, whether requested alone or together with a claim for damages, can be evaluated by the court of general jurisdiction.
Article 1 of Law No. 5651 on the Regulation of Publications Made on the Internet and the Fight Against Crimes Committed Through These Publications, which entered into force upon its publication in the Official Gazette on May 23, 2007, states that “the obligations and responsibilities of content providers, hosting providers, access providers, and collective use providers, as well as the principles and procedures for combating certain crimes committed in the internet environment through content, hosting, and access providers” are regulated.
Paragraph 1 of Article 9 of the same Law states: “A person who claims that their rights have been violated due to content may apply to the content provider or, if unable to reach them, to the hosting provider, requesting that the content relating to them be removed from publication and that their response, prepared within the scope of the publication, be published on the internet for a period of one week. The content or hosting provider shall comply with the request within two days of receiving it. If the request is not fulfilled within this period, it shall be deemed rejected.“ Paragraph 2 states: ”If the request is deemed rejected, the person may apply to the local criminal court of peace within fifteen days, requesting a decision to remove the content from publication and to publish their response online for one week, provided that it does not exceed the scope of the original content. The magistrate shall decide on this request within three days without holding a hearing. An appeal may be lodged against the magistrate’s decision in accordance with the provisions of the Criminal Procedure Code.”
On the other hand, Article 24 of the Turkish Civil Code No. 4721 states: “A person whose personality rights have been violated in violation of the law may request protection from the court against the perpetrators of the violation,” Article 25 stipulates that “The plaintiff may request the court to prevent the threat of infringement, to put an end to the ongoing infringement, to determine the unlawfulness of the infringement even if it has ended but its effects continue, and the plaintiff may also request that the correction or decision be notified to or published by third parties.”
Law No. 5651 regulates the procedures and principles for combating violations of personal rights due to publications on the internet and, in this respect, is a special law under Civil Code No. 4721. It is a general rule of law that, where a special law exists, it shall be applied first. Moreover, the special law also contains a specific regulation regarding the jurisdiction over the concrete case.
Therefore, considering the special regulation in Law No. 5651, it is understood that the court with jurisdiction in this matter is the criminal court of peace. While the court should have ruled on lack of jurisdiction regarding the request for a precautionary measure to remove the publication from the website, it was incorrect to rule on the merits of the request in writing. For this reason, the decision must be overturned.
CONCLUSION: The appealed decision was REVERSED for the reasons stated above, and it was decided by majority vote on May 27, 2013, that the prepaid fee should be refunded upon request.
DISSENTING OPINION: Based on the documents in the file, the evidence on which the decision is based, and the compelling reasons required by law, I find all the appeals to be unfounded and believe that the ruling, which is in accordance with procedure and the law, should be upheld. Therefore, I do not agree with the majority’s decision to overturn the decision.