One of the cornerstones of the universal declaration of human rights is freedom of expression. Article 10 of the European Convention on Human Rights ("the Convention")1, published by the United Nations and adopted by many countries, begins as "Everyone has the right to freedom of expression". Freedom of expression is a right that is granted to every person, and as every right, it has certain limits. However, due to its freedom of expression structure, it may conflict with other rights in the Convention2. In this context, in the 2nd paragraph of the related article, the measures to be taken by the states are included.
In addition, as can be seen in the article 19 of The International Covenant on Civil and Political Rights ("ICCPR"), freedom of expression can only be limited in terms of counted situations; Freedom of expression may be limited as to the need to respect the rights of others3. When we examine within the framework of both convention and ICCPR, it is regulated that freedom of expression is an absolute right and we can see that each individual has, as well as it can be limited in case of conflict with the rights of other individuals.
Freedom of the press is accepted as a reflection of freedom of expression, is regulated in the Article 26 of the Constitution4 and the Press Law5, but the definition of freedom of the press has not been defined. To define the freedom of the press, which we will examine within the scope of personal data; is to publicly explain the mistakes, fault, unlawfulness and other situations that involve the obligation to enlighten the public. Freedom of the press is not an option; it is a duty of the press. As it is seen, freedom of press and expression are two intertwined rights, and are protected by both the Constitution, Universal Declaration of Human Rights and ICCPR.
Although the right to freedom of expression causes controversy in the doctrine, there are various opinions about when the border will begin. For this reason, it will be very important to reach a conclusion by considering the limits within the framework of law.
In Turkey on April 7, 2018 based on to Article 20 of the Constitution6, the Personal Data Protection Law No. 6698 ("Law") came into the force. The right to freedom of expression conflicts with the aim of introducing the law. According to the law, the personal data of natural persons are protected, in this context, it will clearly be against the law to process the data of a natural person without any law or consent. From the act of law processing, transferring, storing, maintaining data and other situations are understood. At this point, a law that conflicts with the freedom of expression and press has emerged. For this reason, the Law has determined certain situations as exceptions and excluded them from the scope of the law. The law explicitly states that the data processed within the scope of freedom of expression are not covered by the law:
"....personal data is 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 they are processed so as not to constitute a crime..."7
As seen from this point of view, personal data processed within the scope of freedom of expression and freedom of the press in this context are not protected under protect of the Personal Data Protection Law. The confrontation between freedom of expression and personal data appears here. The data of a third party whose personal data are included in a column of a data processing activity, for example, in a newspaper, within the scope of freedom of expression and freedom of the press, conflict. Considering the constitution and international conventions we have mentioned, the right to freedom of expression is superior to the right to protection of personal data. But the question of whether this will happen in this case should be raised. It should always be discussed whether it is always right under the fairness rules to accept that one party's freedom of expression is above the right of the other party to seek protection of their personal data. It should be evaluated in terms of every concrete event.
The Personal Data Protection Board ("the Board") also decided regarding this matter as follows:
"Paragraph (1) of Article 28 (1) of the Law on Protection of Personal Data No. 6698, since it is considered that the column in a newspaper in which a real person's name is mentioned is considered to be within the scope of the freedom of expression, which is a reflection of freedom of expression, considering that the person is still in a position that concerns the public. In accordance with the clause, it has been decided that there is no action to be taken by the Board regarding the request of the person concerned for deletion of that column. "8
In its decision, the Board admitted the right to freedom of expression above the right to request protection of personal data and rejected the request.
Although it seems objectionable in terms of informatics law, it is necessary to conclude that the fact that freedom of expression is of greater importance is the essence of the law, although it seems that it is objectionable for information law to come after a matter that has great importance in the current world of law such as personal data. However, restricting the freedom of expression, which is one of the most important universal rights of individuals, to protect personal data, will result in the press not being able to report in any way. The content of articles that are read daily by millions of people, such as newspaper articles and columns, contains mostly information about third parties, and much of this information can be described as personal data. Freedom of expression will have not only objective but also subjective content. The most important criterion here is the balance between freedom of expression and personal data that can be processed. In accordance with the rules of fairness and the spirit of the laws, namely the ratio legis, it is necessary to examine in each specific case.
1 European Human Rights Convention, article 10
3 The International Covenant on Civil and Political Rights (ICCPR) article 19/3-a
4 Constitution of the Republic of Turkeyi article 26
5 Press Law No. 5187
6 Constitution of the Republic of Turkey, article 20/3 (7/5/2010-5982/2 art.)
7 Personal Data Protection Law No. 6698 article 28/1-c
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