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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

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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

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