Does the right to inform violate the privacy of private life?

Can the exercise of a right (the right to inform) be utilized as a justification in cases of publications that violate the privacy of private life? What are the criteria that must be met for this?

I am briefly evaluating this question by also taking into account the approaches of high judicial bodies such as the ECHR, the Constitutional Court, and the Court of Cassation.

In the Turkish Penal Code (TCK) No. 5237, justifications are accepted as follows;

a- Fulfillment of a legal provision (Art. 24/1)

b- Legitimate defense (Art. 25/1)

c- Consent of the concerned party (Art. 26/2)

d- Exercise of a right (Art. 26/1).

Even if all elements of a crime have been established, if a justification exists, the act will not constitute a crime. 

In this context, can the exercise of the right (the right to inform) be considered a justification under the law regarding publications that violate the privacy of private life?

In general;;

Freedom of the press, which is based on Article 10 of the European Convention on Human Rights and Article 28 et seq. of the Constitution, and is regulated in Article 3 of the Press Law No. 5187, along with the rights to obtain, disseminate, criticize, interpret, and create works within this scope, constitutes a justification under the law within the framework of the provision in the first paragraph of Article 26 of the Turkish Penal Code (TCK), which states: "No penalty shall be imposed on a person who exercises their right."

According to Article 3 of the Press Law No. 5187: "The press is free. This freedom includes the rights to obtain, disseminate, criticize, interpret, and create works."

The freedom to receive or impart information or ideas is regulated in Article 26 of the Constitution, while freedom of the press is regulated in Article 28 of the Constitution. 

The freedom to receive and impart information and opinions is also guaranteed under Article 10 of the ECHR. Undoubtedly, these freedoms include obtaining, explaining, disseminating, criticizing, and interpreting information. Among the reasons for limitation stipulated in the Constitution regarding these freedoms are the protection of the reputation or rights of others and the protection of private and family life, and a similar provision is also included in the ECHR.

In Article 10 of the European Convention on Human Rights, titled "Freedom of expression";

"1- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary," it is stated.

Furthermore, Article 133 of the Constitution regulates the "freedom to establish and operate radio and television stations," and Article 25, in its essence, regulates the "freedom of thought and opinion."

While covering newsworthy events in the press, details concerning private life are often brought to the forefront. 

The ECHR examines whether a balance exists between conflicting rights by looking at the contribution of the news to a debate of public interest, the public prominence of the person concerned, the subject, content, form, and consequences of the news, the prior conduct of the person concerned, the method by which the information was obtained, its veracity, and the circumstances under which the image was taken. The Constitutional Court conducts an examination with a similar approach but is criticized for prioritizing freedom of expression in its balancing act.

It is important that the unique circumstances of each case be evaluated separately.

If it can be concluded that acts violating the privacy of private life relate to the right to report news, they must be considered to lack the element of unlawfulness within the scope of the exercise of that right.

Accordingly, and in the practice of the Court of Cassation, for the right to report news—an important part of press freedom—to be considered a justification under the law, certain conditions must be met. These are;

1- The news must be true,

2- The news must be current,

3- There must be a public interest in reporting the news,

4- There must be an intellectual connection between the form of the report and its substance.

For these reasons, regarding publications that violate the privacy of private life, whether the exercise of the right (the right to inform) constitutes a justification under the law must be examined individually in every specific case.

The absence of any of the aforementioned conditions will render the act of reporting unlawful, and we will not be able to speak of a justification for the crime regulated under Article 134 of the Turkish Penal Code (TCK).

It should be noted that the right to inform is exercised in a broader scope regarding public figures (artists, politicians, athletes, etc.).

The more significant a person's position in society and the greater their public recognition, the more the public interest in news about that person will increase. Here, too, it is a necessity to establish a balance between the right to inform and be informed and the individual's right to privacy, based on the circumstances of each specific case.

It can generally be said that the condition that "there must be a public interest in reporting the news" is not met in terms of tabloid news. The Court of Cassation also states, "Satisfying people's curiosity in tabloid news is not a public interest."

News Source: 12punto