It is evident that many of the claims brought before the Personal Data Protection Board (“the Board”) by data subjects come to life due to rapid development of information technology and how data violations occur on various platforms as a result of this evolution. According to Turkish law, the right to data protection is a fundamental personal right which is also embedded in Turkish Constitution (“the Constitution”). Article 29 of the Constitution states that “everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/ her personal data, and to be informed whether these are used in consistency with envisaged objectives”.
The main objective of the Personal Data Protection Law numbered 6698 (“the Law”) is to “protect fundamental rights and freedoms of persons, particularly the right to privacy, with respect to processing of personal data and to set forth obligations, principles and procedures which shall be binding upon natural or legal persons who process personal data”. This way the Law brings certain responsibilities upon data controllers and protects data subjects’ rights over their own data. This article will examine the complaints of data subjects brought before the Board concerning data controllers who are exercising press and media rights and how the Board evaluates Article 28 of the Law for freedom of expression purposes.
The first decision which has ever been published on the Data Protection Authority’s (“the Authority”) website concerns a complaint lodged before the Authority where the data subject requests the erasure of a column news published on newspaper (data controller) that mentions his/her name. Even though the Board did not carry out an in-depth analysis in this application it asserted that data subject is in a position where his/her data holds public interest. Therefore, the Board concluded the application of the data subject on the basis of Article 28 and by virtue of clause 1(c) decided that the news is “within the scope of freedom of expression” which also extents to journalistic freedom.
Article 28 of the Law is an important clause which regulates certain circumstances where processing of personal data enjoys exemptions. If a data processing takes place under Article 28 of the Law, then that data processing is not subject to the principles and procedures of the Law. Clause 1(c) of Article 28 includes journalism activities which states:
Article 28: (1) The provisions of this Law shall not be applied in the following cases where:
(c) “personal data are processed with artistic, historical, literary or scientific purposes, or within the scope of freedom of expression provided that national defence, national security, public security, public order, economic security, right to privacy or personal rights are not violated or the process doesn’t constitute a crime”.
On a different complaint The Board analyzed a news concerning a data subject and his son. Essentially the column news was concerning the son however the newspaper (data controller) also gave place to information about son’s father and mentioned that the data subject (father) is a cancer patient who is seeking cancer treatment. However, at the time when the news was published the data subject did not know that he was being treated for cancer hence learned it from the newspaper. He therefore lodged a complaint with the Authority and requested necessary actions to be taken for his health data which is deemed as special category of personal data which requires explicit consent of the data subject in order to be processed by virtue of the Law.
After evaluating the complaint, The Board concluded that data subject’s health data does not hold any public interest and when conflicting rights are assessed personal rights should prevail over freedom of expression. This way, the Board ruled out the applicability of clause 1(c) of Article 28 in this decision.
Another complaint submitted to the Authority concerned a data subject which requested his/her data to be removed from newspaper’s (data controller’s) internet site. The data subject claimed that when he/she searches his/her name on Google search engine, the newspaper’s link appears which gives access to news concerning his/her conviction for a crime he/she has committed 10 years ago. Data subject puts forward that
he/she had executed his/her sentence in entirety and the existence of the news affects his/her work life and private life in a negative way.
The newspaper in its defense relied upon Article 26 of the Constitution which states “everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information…” and claimed that organs of the press an media are deemed as “Democracy’s Watchdogs”. The newspaper also put forward that the personal data processed in the relevant news regarding the data subject is within the merits of “general public’s right to receive information” which also extents to “journalistic freedom” and therefore should be evaluated as “compliant with law”.
In this decision it is understood that in situations where journalistic freedom and personal rights clash with each other the Board adopts a three-way test (“the Balance Test”) pursuant to Supreme court decisions and opinions set out in doctrines. Therefore, it would be appropriate to say that when handling the Balance Test between freedom of expression and personal rights, the Board evaluates each application separately and decides whether a news:
a) carries public interest,
b) is real and up-to-date,
c) holds balance between its content and format.
This specific complaint to the Authority carries importance as it is the first decision where the Board applies the Balance Test and underlines the importance of the application to determine which right should prevail.
In order to establish public interest under the first criteria of the Balance Test, the Board concluded that incidents which give rise to public curiosity, which persuades public to think and argue the matter in a certain way, which helps to bring light on a specific issue and shows ways in which they can be resolved are deemed as serving public interest. Even though the data subject is not a famous or publicly known person, the Board established that there is public interest in the news since it was about culprits who committed human trafficking offence; and data subject was one of them. For the second criteria the Board decided that the news was up-to-date at the time it was published and the public interest factor still continued until today. For the last criteria of the Balance Test, the Board stated that when a story is published, there should be proportionality between the way a story is portrayed along with the language and pictures which are used in order to balance “content and format” factor to operate in unity. The Board further stated that any news which will be published should avoid any unnecessary, irrelative and unbeneficial declaration or evaluation and concluded that in this case there is proportionality between content and format.
As a result, the Board rejected data subject’s application and decided not to take any action on the matter. In this case the Board decided on the continuation of public interest pursuant to Article 28(1)(c). Even though criminal conviction data is regarded as a special category of data by the Law, which is normally subject to explicit consent of the data subject, the Board protected journalism freedom under the merits of Article 28.
In the light of the abovementioned board decisions, it is evident that the Board adopts a more elaborative approach on each application and tries to level between personal rights and freedom of expression through the application of the Balance Test. The very nature of the Law is to protect data subjects and bring certain obligations to data controllers. For this reason, press and media organs, who act as data controllers, should pay attention to whether the laid-out piece of news carries public interest, is real and up-to-date and holds balance between its content and format before it gets published. It appears that the Board gives more weight to public interest and content factors rather than up-to-datedness and stipulates that any piece of information which will be published should persuade public to think and argue a matter in a certain way.