T.C.
SUPREME
- law office
BASE NO. 2013/7417
DECISION NO. 2013/10004
DATE OF DECISION. 27.5.2013
A REQUEST FOR MORAL COMPENSATION AND AN INJUNCTION (Based on an Attack on Personal Rights on the Website – In Accordance with the Acceptance that the Magistrate’s Court is in Charge)
ASSAULT ON PERSONAL RIGHTS ON THE WEBSITE (Request for Moral Compensation and an Injunction – The Case will be Heard in the Magistrate’s Court)
COURT ON DUTY (Request for Non-Pecuniary Compensation and an Injunction Based on an Attack on Personal Rights on the Website – The Case Should be Heard in the Magistrate’s Court)
THE AREA OF DUTY OF THE MAGISTRATE’S COURT (Request for Moral Compensation and an Injunction Based on an Attack on Personal Rights on the Website – The Need for the Case to be Heard in the Magistrate’s Court)
4721/m.24, 25
5651/m.9
SUMMARY: The case concerns requests for non-pecuniary damages and injunctions based on an attack on personal rights. The dispute centres on whether a request to remove a publication that constitutes an attack on the rights of a person on the website from the content by way of a precautionary measure can be considered by the competent court alone or if it is requested together with a request for compensation. considering the special regulation in law No. 5651, it is understood that the court in charge of this issue is the magistrate’s court. The court must issue a non-performance order in terms of a request for an injunction to remove the publication on the website.
CASE: Plaintiff T.C. Ziraat Bank A.Sh. By the Acting Director General, defendant B. C. et al. at the end of the trial held by the court upon the request for moral compensation with the petition filed against him on 12.10.2012; The Supreme Court’s examination of the decision issued on the rejection of the injunction request on 18.02.2013 was requested by the plaintiff’s deputy within the period of the acceptance of the appeal petition after the report prepared by the examining judge and the papers in the file were examined and discussed as necessary:
DECISION: The case is related to requests for moral compensation and injunctive relief based on an attack on personal rights, and the court decided to reject the injunction request by an interim decision dated 18.02.2013, and the said dec was appealed by the plaintiff.
Plaintiff, defendant B. C.“in “www.xxxxxgazete.com on his website titled “The article he wrote with the title ”The waters do not stop at Ziraat Bankası” stated that his personal rights were attacked and demanded that the defendants compensate him for the moral damage he suffered and issue an injunction to remove, stop and prevent illegal publication.
The court decided to reject the injunction request by an interim decision dated 18.02.2013 due to the fact that the case is still pending and the request for an injunction is of a nature that will decipher the merits of the case.
The dispute centres on whether a request to remove a publication that constitutes an attack on the rights of a person on the website from the content by way of a precautionary measure can be considered by the competent court alone or if it is requested together with a request for compensation.
article 1 of the Law No. 5651 “On the regulation of publications made on the Internet and combating crimes committed through these publications”, which entered into force by publication in the Official Gazette on 23/05/2007. in the article; ”The obligations and responsibilities of the content provider, location provider, access provider and public use providers, as well as the principles and procedures for combating certain crimes committed on the Internet through content, location and access providers” are regulated,
9 Of the Same Law. Article 1. in its paragraph; “A person claiming that his rights have been violated due to the content may request the content provider to remove the content related to him from the publication by contacting the location provider if he cannot reach it and publish the answer he has prepared on the Internet for a week, not more than its scope in the publication. The content or location provider fulfills the request within two days from the date of its receipt. If the request is not fulfilled during this period, it is considered rejected.” it is said, in the second paragraph, if the request is considered rejected, a person may apply to the settlement magistrate’s court within fifteen days to request that the content be removed from publication and the answer he has prepared, not exceeding the scope of publication, be published on the Internet for a week. The magistrate decides on this request within three days without a hearing. An appeal may be filed against the decision of the magistrate in accordance with the provisions of the Code of Criminal Procedure.” it is understood that the arrangement is given in the form.
On the other hand, Article 24 of the Turkish Civil Code No. 4721. in its article; ”A person whose right to personality has been attacked in violation of the law may ask a judge to protect him against those who have been attacked”, 25. in its article; ”The plaintiff may ask the judge to prevent the danger of an attack, end the ongoing attack, determine the illegality of the ongoing attack, even if it has ended, and the plaintiff may also request that the correction or decision be notified to third parties or published, as well as the plaintiff.”
law No. 5651 regulates according to which procedures and principles to fight if the rights of a person are attacked due to publications on the Internet, and in this aspect it is a special law according to Civil Code No. 4721. It is also a general rule of law that if there is a regulation 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 a specific event.
At the moment, when the special regulation in law No. 5651 is observed, it is understood that the court in charge of this issue is the magistrate’s court. It is not true that the court made a decision on the merits of the request in writing, while a decision on dismissal should be made in terms of a 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 vote on 27.05.2013 that the appealed decision should be OVERTURNED for the reasons shown above and the fee received in advance should be returned on request.
VOTE AGAINST: I do not agree with the decision of the majority to overturn the articles in the file, as I believe that the decision is based on the evidence and the approval of the provision that is in accordance with the procedure and the law by rejecting all appeals that are not considered to be in place for reasons that are not in accordance with the law.
