TC
Supreme
law office
BASIC NO. 2013/7417
DECISION NO. 2013/10004
THE DECISION IS HISTORIC. 27.5.2013
REQUEST FOR MORAL COMPENSATION AND ORDER DECISION (Due to the Attack on Personal Rights Via the Website – In Accordance with the Acceptance of the Duty of the Criminal Magistrate)
ATTACK ON PERSONAL RIGHTS ON THE WEBSITE (Request for Moral Compensation and Injunction – The Case will be Heard in the Magistrate’s Court)
ON-DUTY COURT (Request for Moral Compensation and Injunction Due to the Attack on Personal Rights via the Website – The Case Must be Heard in the Civil Court of Peace)
SCOPE OF DUTY OF THE CIVIL COURT OF PEACE (Request for Moral Compensation and Injunction Due to the Attack on Personal Rights via the Website – The Need for the Case to be Heard in the Civil Court of Peace)
4721/m.24, 25
5651/m.9
SUMMARY:
The case relates to claims for moral compensation and injunctive relief due to an attack on personal rights. The dispute concerns whether a request to remove a publication on the website that constitutes an attack on a person’s rights from the content by means of an injunction will be requested by the competent court alone or together with a compensation request. Taking into account the special regulation in the law No. 5651, it is understood that the court in charge of this issue is the criminal court of peace. In terms of the request for an injunction regarding the removal of the publication on the website, the court must make a decision to refrain from execution.
THE CASE:
The plaintiff is TC Ziraat Bank A.Sh. At the end of the trial conducted by the Deputy Director General on the request for moral compensation with the petition of the lawsuit filed on 12.10.2012 against the defendant BC and others; the examination of the decision of the Supreme Court on the rejection of the injunction request dated 18.02.2013 was requested by the plaintiff’s attorney after the examination of the report and the document in the file organized by the examining magistrate and the necessary discussion during the acceptance of the appeal petition:
DECISION:
The case is related to the claims for moral compensation and injunction due to the attack on personal rights, and the Decrees of the court dated 18.02.2013 rejected the injunction request and the said decision was appealed by the plaintiff.
The plaintiff, the defendant BC, “www.xxxxxgazete.com “ in an article he wrote on his website titled ”The Waters Do not Stop at Ziraat Bank”, he claimed that his personal rights had been violated and demanded compensation for the moral damage suffered by the defendants and an injunction to remove, stop and block illegal publications.
Court decided to reject the injunction request with its interim Decrees dated 18.02.2013 due to the fact that the case is still pending and the injunction request is of a nature to determine the merits of the case.
The dispute centers on the point of whether a request to remove a publication on the website that constitutes an attack on a person’s rights from the content by means of an injunction should be evaluated by the competent court alone, or together with a compensation request.
1 of the “Law on the Regulation of Publications Made on the Internet and Combating Crimes Committed Through These Publications” numbered 5651, which entered into force through publication in the Official Gazette dated 23/05/2007. in the article; ”The obligations and responsibilities of the content provider, the place provider, the access provider and the collective use providers, as well as the procedures and principles related to the fight against certain crimes committed on the Internet through the content, place and access providers” are regulated,
9 Of the same Law. its substance. 1. in the paragraph; “A person who claims that his rights have been violated due to the content, if he cannot reach it, may contact the hosting provider to request that the content related to him be removed from publication and that the response he has prepared be published on the Internet for a week, so as not to exceed the scope of the publication.
The content or hosting provider fulfills the request within two days from the date it reaches it. If the request is not fulfilled within this period, it is considered rejected.” it is stated that in the second paragraph, if the request is considered rejected, a person may apply to the criminal court of peace of the settlement within fifteen days to request that the content be removed from publication and that the response he has prepared be published on the Internet for a week, not to exceed the scope of the publication.
The criminal judge of peace decides on this request within three days without a hearing. An appeal may be made against the decision of the criminal judge of peace in accordance with the provisions of the Code of Criminal Procedure.” it is understood that an arrangement has been made in the form of.
On the other hand, 24 of the Turkish Civil Code numbered 4721. in the article; ”A person whose right to personality has been attacked in violation of the law may request the judge to protect himself against those who have been attacked”, 25. in the article; “The plaintiff may request the judge to prevent the danger of attack, to stop the ongoing attack, to determine the illegality of the attack, even if the ongoing attack has ended, and the plaintiff may also request that the correction or decision be notified or published to him, as well as to the plaintiff himself.”
law No. 5651 regulates the procedures and principles by which to fight if there is an attack on a person’s rights due to publications made on the Internet, and in this respect it is a special law according to the Civil Code No. 4721. In addition, if there is a regulation in a special law, it is a general rule of law that will be applied first. In addition, the special law also contains a special regulation in terms of the duty related to a specific event.
Currently, when we look at the special regulation in law No. 5651, it is understood that the court in charge of this issue is the criminal court of peace. It is not correct for the court to decide in writing on the merits of the request, whereas a rejection decision should be made regarding the request for an injunction to remove the publication on the website. For this reason, the decision had to be overturned.
CONCLUSION: It was decided by a majority of votes on 27.05.2013 to overturn the decision appealed for the reasons mentioned above and to return the fees received in advance if requested.
VOTE AGAINST: I disagree with the majority decision regarding the corruption of the articles in the file, because I think that the decision is based on evidence and is made by accepting the provision that is in accordance with the procedure and the law, and rejecting all objections that are not considered in place for reasons that are not in accordance with the law.