Which Constitutes an Attack on Personal Rights Via the Internet – Supreme Court Decision

T.C.
SUPREME
4. law office

THE MAIN NO. 2013/7417

DECISION NO. 2013/10004

THE DATE OF THE DECISION. 27.5.2013

REQUEST FOR MORAL COMPENSATION AND PRECAUTIONARY MEASURE (Based on an Attack on Personal Rights on the Website – In Recognition of the Fact that the Criminal Court of Peace is on Duty)

ATTACK ON PERSONAL RIGHTS ON THE WEBSITE (Request for Moral Compensation and Precautionary Measures – The Case will be Heard in the Criminal Court of Peace)

OFFICIAL COURT (Request for Moral Compensation and Precautionary Measures Based on the Attack on Personal Rights on the Website – The Case Should Be Heard in the Criminal Court of Peace)

THE SCOPE OF THE CRIMINAL COURT OF PEACE (Moral Compensation Based on the Attack on Personal Rights on the Website and the Request for an Injunction – The Case Must be Heard in the Criminal Court of Peace)

4721/m.24, 25

5651/m.9

SUMMARY: The case concerns claims for moral compensation and injunctive relief based on an attack on personal rights. The dispute is gathered at the point of whether the request to remove the publication on the website, which constitutes an attack on personal rights, from the content through a precautionary measure, can be evaluated by the general authorized court if requested alone or together with the request for compensation. when the special regulation in the law numbered 5651 is observed, it is understood that the court in charge of this matter is the criminal court of peace. In terms of the request for an injunction for the removal of the publication on the website, the court should issue a decision of non-duty.
CASE: Plaintiff T.C. Agricultural Bank A.Sh. By the deputy of the General Directorate, defendant B. O. et al. 12.10.2012 given day with the petition against non-pecuniary damages made by the court on the request for at the end of the trial; injunctive relief given for the rejection of the request for 18.02.2013-time decision by the Supreme Court as the plaintiff’s attorney requested within the exam period, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file:

DECISION: The case is related to requests for moral compensation and precautionary measures based on an attack on personal rights, and the court decided to reject the request for an injunction with an interim decision dated Dec 18.02.2013, the aforementioned provision was appealed by the plaintiff.

Plaintiff, defendant B. O.”in “www.xxxxxgazete.com the article he wrote with the title “Waters do not stop at Ziraat Bank” on his website named “stating that his personal rights were attacked, he demanded compensation for the moral damage suffered by the defendants and an injunction decision to be taken to remove, stop and prevent illegal publication.

With the interim decision dated 18.02.2013, the court decided to reject the request for an injunction due to the fact that the case is still in trouble and the request for an injunction is of a nature to Decipher the merits of the case.

The dispute is gathered at the point of whether the request to remove the publication on the website, which constitutes an attack on personal rights, from the content through a precautionary measure, can be evaluated by the general authorized court if requested alone or together with the request for compensation.

1 of the 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 through publication in the Official Gazette on 23/05/2007. in the article; “obligations and responsibilities of content providers, location providers, access providers and mass use providers, as well as the principles and procedures related to combating certain crimes committed on the Internet through content, location and access providers” are regulated,

9 of the same Law. article 1. in the paragraph; “people who claim that rights have been violated due to Content, the content provider, by contacting the provider in case of failure to reach it from the publication, and the publication of its content be removed from the scope of that answer may request that the most prepared for a week be published in the internet. The content or location provider fulfills the request within two days from the date it receives it. If the request is not fulfilled during this time, it is considered rejected.”in the second paragraph, it is said that if the request is considered rejected, a person may apply to the criminal court of peace of the settlement within fifteen days and request that a decision be made to remove the content from publication and publish the answer he has prepared, not more than the scope of the publication, on the Internet for a week. The magistrate judge decides on this request within three days without holding a hearing. An appeal may be filed against the decision of the criminal magistrate judge in accordance with the provisions of the Code of Criminal Procedure.” it is understood that the arrangement is included in the form.

On the other hand, Article 24 of the Turkish Civil Code No. 4721. in the article; ”A person whose right to personality is attacked unlawfully may ask the judge for protection against those who commit the attack”, 25. in the article; “The plaintiff may request the judge to prevent the danger of attack, to put an end to the ongoing attack, to determine the illegality of the attack, the effects of which continue even if it has ended, the plaintiff may also request the notification or publication of the correction or decision to third parties ”.

the law No. 5651 regulates the procedures and principles to be fought according to in case of personal rights being attacked due to publications on the Internet and in this respect it is a special law according to the Civil Code No. 4721. It is also the general rule of law that if a regulation exists in a special law, it will be applied first. Moreover, the special law also contains a special regulation in terms of the duty related to the concrete event.

In this case, when the special regulation in the law No. 5651 is observed, it is understood that the court in charge of this matter is the magistrate’s criminal court. It is not correct that the court decided on the merits of the request in writing, while a decision on dismissal from duty should have been made in terms of the request for an injunction to remove the publication on the website. Therefore, the decision had to be overturned.

CONCLUSION: It was decided by a majority of votes on 27.05.2013 to OVERTURN the appealed decision for the reasons shown above and to return the fee received in advance upon request.

VOTE AGAINST: Since I am of the opinion that the articles in the file, the evidence on which the decision is based, and the rejection of all appeals that are not considered appropriate according to the necessary reasons in accordance with the law, and the approval of the verdict that is in accordance with the procedure and the law, I do not agree with the majority’s decision to overturn it.

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