02
Mon, Oct
36 New Articles

Turkish Constitutional Court Rules Against the GSM Operator That Rejected the Request of Provision of Phone Records

Turkish Constitutional Court Rules Against the GSM Operator That Rejected the Request of Provision of Phone Records

Turkiye
Tools
Typography
  • Smaller Small Medium Big Bigger
  • Default Helvetica Segoe Georgia Times

In its judgment dated June 28, 2022 and numbered 2018/6161, published in the Official Gazette dated December 20, 2022 and numbered 32049, the Constitutional Court ruled against the GSM operator that had rejected to provide phone line records upon the GSM owner’s request, on the grounds that as a result of such rejection, the right to effective remedy in connection with the right to request the protection of personal data within the framework of the right to respect for private life was violated.

The Court emphasized that the right to effective remedy was violated as the courts' opinions on the dispute prevented the examination of the merits of the applicant's request to access his personal data.

Background of the Decision
The applicant had requested his personal data from the communication company of which he was a customer, including internet data, log records, the IMEI of his phone and the date of his use of Hot Spot. The GSM operator refused the applicant's request, arguing that such information was kept on record for five years and would only be shared if the court requests.

In the lawsuit filed by the applicant before the consumer court, the first instance court dismissed the case on the grounds that the subject matter of the declaratory action did not arise, and therefore there was no legal interest; in addition, since there was no damage, the conditions for non-pecuniary damages were not met. Subsequently, the applicant's appeal application was rejected by the Regional Court of Appeal on the grounds that the information requested was not within the scope of the information that the company was obliged to share under the legislation.

Thereupon, the applicant claimed that he could not exercise his right to access his personal data, to learn whether these data were correct or not, and to correct the errors in the data, and claimed that his right to protection of personal data, right to respect for private life, right to legal remedy and property right were violated.

Court’s Decision
In its examination of the application, the Constitutional Court reminded that the State has a positive obligation to protect the right to request the protection of personal data within the scope of the protection of private life, to prevent ongoing interventions and to compensate for the damage incurred, and emphasized the need to provide effective administrative and judicial remedies to those who claim that their constitutional right has been violated, especially in terms of compensation for the damage.

In this context, the Constitutional Court emphasized the principle of transparency of data processing by stating that the right to request the protection of personal data pursuant to paragraph 3 of Article 20 of the Constitution includes the right to be informed about personal data concerning oneself, to access the data and to request the correction and deletion of such data, and to be informed about the purposes for which it is used, and that data subjects should be given the opportunity to access their personal data. In this respect, the Constitutional Court stated that the positive obligations of the State include not only establishing legislation for the protection of this right but also ensuring the effective functioning of the legal remedies provided for in the legislation.

Furthermore, the Constitutional Court highlighted that the courts had made an evaluation that prevented the examination of the applicant's request for access to his personal data on the merits during the trial process carried out within the scope of the current case, and also pointed out that the rejection of the applicant's request for access to his personal data was not justified in accordance with the requirements of the right to request the protection of personal data stipulated in Article 20 of the Constitution. In addition, the Constitutional Court concluded that it was not examined whether there was an obligation imposed on the communication company in accordance with the legislation to provide access to the requested data and ruled that the applicant's right to request the protection of personal data within the scope of the right to respect for private life and the related right to effective remedy were violated on the grounds that the evaluations made by the relevant courts caused the existing and effective remedy to be ineffective.

Finally, it was decided to reject the applicant's compensation claims and to send the file back to the court of the first instance for retrial, stating that a retrial would provide a sufficient remedy to eliminate the violation and its consequences.

By Nihat Ozbek, Partner, Guleryuz & Partners

Guleryuz & Partners at a Glance

Güleryüz & Partners Attorneys at Law is an Istanbul based law firm offering a broad scope of high-quality legal services to domestic and multinational clients across a wide range of regulated and non-regulated industries. The Firm is comprised of energetic young professionals, led by experienced lawyers with a proven track record of working in the most demanding environments possible. Our team has comprehensive experience in serving clients in connection with a full breadth of Turkish law matters including Litigation & Dispute Resolution, M&A, Wealth Management & Family Businesses, General Corporate & Contract Law, Real Estate & Construction, Enforcement and Bankruptcy Proceedings, Labor Law, Administrative Law, and Anti-Corruption & White-Collar Crimes. 

Our core business culture is centered on integrity, dedication to clients’ needs, and excellence of legal advice and services. Therefore, our primary objective is to ensure the most personalized and reliable legal service for our clients. In pursuit of this objective, the international academic backgrounds of our partners at prestigious universities in USA, UK and Germany coupled with more than ten years of past experience at top tier Turkish law firms enhances the visionary practice of the Firm.

We blend our practical expertise with our outstanding grasp of legal theory in order to provide our clients with legal services of unmatched quality. Our clients range from multinational companies where we provide a level of attention normally only expected from in-house counsels in order to timely manage every aspect of the clients’ legal needs, to individuals for whom we make their objectives ours in order to provide comfort and ease of life. While we always put client service above all, we are proud to be on a quest to make reliable legal information available for everyone. Hence, we are constantly authoring articles on a broad scope of legal topics for respectable publications including Bloomberg Businessweek and the monthly magazine TR Monitor.

While Güleryüz & Partners operates mainly in Turkish and English, we are capable of providing legal services in French, German and Russian as well. The Firm also has an associated office in Ankara.

You can learn more about the Firm at guleryuz.av.tr