T.C.
SUPREME
4. LEGAL DEPARTMENT

PRINCIPAL NO. 2013/7417

DECISION NO. 2013/10004

DECISION DATE. 27.5.2013

Request for moral compensation and injunctions (based on assault on Personal Rights on the website – the requirement that the Magistrates ‘ Court is in charge)

Assault on personal rights on the website (request for Moral compensation and injunction – the case will be heard in the Magistrates Court)

Duty court (request for non-pecuniary compensation and injunction based on assault on Personal Rights on the website – the case should be heard in the Magistrates Court)

Task area of the magistrates ‘court (request for Moral compensation and injunction based on assault on Personal Rights on the website – the case must be heard in the Magistrates’ Court)

4721 / m.24, 25

5651 / m.9

Summary: the case is related to claims for moral damages and injunctions based on assault on personal rights. The dispute is settled at the point where the request to remove the publication which constitutes an attack on the rights of persons on the website by means of injunction can be evaluated by the general competent court if it is requested alone or together with the claim for compensation. When the special regulation of the law No. 5651 is taken into consideration, it is understood that the court in charge of this matter is the magistrate’s court. The court must issue a non-duty decision in respect of the request for an injunction to remove the publication on the website.
Lawsuit: plaintiff T.C. Ziraat Bank A.P. By the Acting Director General, defendant B. O. et al. at the end of the proceedings made by the court on the request of moral compensation with the petition against 12.10.2012, the decision of 18.02.2013 on the rejection of the injunction request was reviewed by the Court of Cassation and after the decision was made to accept the appeal petition, the report prepared by the examination Judge and the papers in the file:

Decision: the case is related to the requests for moral damages and injunctions based on assault on the rights of the person, and the court decided to reject the request for injunction with the interim decision dated 18.02.2013, and the said decider was appealed by the plaintiff.

Plaintiff, defendant B. O.of ’www.xxxxxgazete.com the article he wrote on his web site with the title “the waters do not settle in Ziraat Bank” demanded compensation by the defendants for the moral damage he suffered by stating that his personal rights had been attacked and a decision of injunction to remove, stop and prevent the publication contrary to the law.

The court decided to reject the request for an injunction due to the fact that the case is still derdest and that the request for an injunction is in the nature to decipher the merits of the case by the interim decision dated 18.02.2013.

The dispute is settled at the point where the request to remove the publication which constitutes an attack on the rights of persons on the website by means of injunction can be evaluated by the general competent court if it is requested alone or together with the claim for compensation.

No. 5651, which came into force after being published in the Official Gazette on 23/05/2007 “regulation of publications made on the internet and the fight against crimes committed through these publications Law 1. the article states that “the obligations and responsibilities of the content provider, location provider, access provider and collective use providers and the principles and procedures for combating certain crimes committed on the internet through the content, location and access providers” are regulated.,

9 Of The Same Law. Article 1. in the paragraph, ” the person who claims that his rights are violated because of the content, the content provider, if he can not reach it by contacting the location provider to remove the content related to him and the publication of the internet for a period of one week, not more than the scope of the prepared response may request. The content or location provider fulfills the request within two days of its arrival. If the request is not fulfilled during this time, it is deemed rejected.”in the second paragraph, if the request is rejected, the person may apply to the settlement Magistrates Court within fifteen days and request that the content be removed from publication and that the response prepared not more than the scope of the publication be published on the internet for a period of one week. The magistrate decides this request without a hearing within three days. An appeal may be made against the decision of the magistrate in accordance with the provisions of the Code of Criminal Procedure.”it is understood that the arrangement was placed in the form of.

On the other hand, 24 of the Turkish Civil Code numbered 4721. article:” the person who is attacked in violation of the law may ask the judge for protection against the assailants”, 25. in the article, ” the plaintiff may ask the judge to prevent the danger of attack, to end the ongoing attack, to determine the illegality of the ongoing attack even if it has ended, and the plaintiff may also request to notify or publish the correction or decision to third parties”.

Law No. 5651 regulates which procedures and principles to fight against in the event that the rights of persons are attacked due to publications on the internet and in this respect it is a special law according to Civil Law No. 4721. It is also the general rule of law that will be applied first if there is a regulation in the special law. Moreover, the special law also includes a special regulation in terms of the task related to the concrete event.

In this case, when the special regulation of the law No. 5651 is taken into consideration, it is understood that the court in charge of this matter is the magistrate’s court. It is not right for the court to have decided on the basis of the request in writing, while the court should have decided on the dismissal of the publication on the website. Therefore, the decision had to be overturned.

Conclusion: it was decided by majority vote on 27.05.2013 that the decision of Appeal was overturned due to the reasons shown above and that the fee received in advance should be returned upon request.

Vote against: I disagree with the decision to overturn the article in the dossier, the evidence on which the decision is based, the rejection of all appeals which are not in place according to the reasons required by law, and the approval of the provision which is in accordance with the procedure and the law.