THE RIGHT OF PRIVACY IN BROADCASTING
The law not only protects the metarial interests but moral values incalculable by money. Material values as basic rights.
One of the most valuable of them is the respect for right of privacy. Those who violate the above mentioned rights have also done the same to human dignity.
The mlong investigated privacy of life, have been forced more by Mass Media whose efectivenes multiplied by the phenomenon of urbanisation created by industrial life of the XVI th century.
In order to solve the conflicts between the right of privacy, and various powers (political, Mass Media, economical) the human beings have been considered not as an abstract individual existing for the community but as concrete units having abilities, liberties and rights.
It is quite difficult to determine contents of the right of privacy as it changes according to time, place or even to people. The right of privacy have been analysied its form including the personal and family life in our article. Where as it is indispensably needed, the privacy of homeand privacy of communication whom are the extensions of that concept or special components ( elements ) having the full meaning of the right of privacy in this sense. (1)
There are four components challenging each other in this field the liberty of press in its the boardest sense, the interest of keeping one’s privacy of personal and family life, the state’s prevention into the field of private life for the sake of common interest and the violation of right of privacy by such groups like syndicates aganist the people who are acting ( acts ) contrary of their interests.
As indicated by Prof. F. Geny “The subject of positive law is the satisfaction of opposite calims rivalling each other in the most proper way. It is indispensable the said claims to be compro mised for the social aim of people.
To provide this result, it is necessary to be aware of the challenging interests dominating each according the social standards criteria and to reconcile them in compliance with the standards of justice and finally to establish an ideal balance amongst them. (2)
It has been designated in the “Congress of Northern Countries” men of law that the right of privacy is to provide one’s life being protected aganist the pointsas follows:
- Searching one’s clothes
- Violating the privacy of home and searching at home or in other places.
- Medical, psychological and physical researches.
- By statements putting someone in a difficult position, false or beyond the normal
standards.
- To obtain the data of communication.
It should be considered as one of the most natural rights of an individual to keep the privacy of certain situations, events, relations, memories or documents and pictures away from others.
It has been designated in Article 12 of United Nations Human Right Decleration that the people that the people privacy (people’s personal field of privacy) should be respected. Article 20 of the Constitution of Turkish Republic has guaranteed the people privacy ( people’s personal field of privacy ) should be respected. Article 20 of the Constitutionof Turkish Republic has guaranteed the people’s privacy (field of mystery) within the conception of the right of privacy. Article 21 and 22 of the said constitution have also designated residence and freedom of communication (expression) therefore aiming to protect the field of privacy. Turkish Penol Code Article 193 and following by protecting the privacy of home secures the field of privacy, as well.
Article 85 of the Code No 5846 that is the law of products of opinion and Art guotes thet one’s letters, reminis cences and simmilar things can not be published without the consent of the owner or his relatives. This designation is also towords the protection of the field of privacy.
Beside of all these arrangements (systems) the field of mystery as a moral value within the field of personl life have also been protected against the violations that might come from outsiders by the Article 24 of Turkish Civil Code and Article 49 of Turkish law of obligations (torts) the infiltration of outsiders into the field of privacy and transfer it to others is added as an violation of personal rights as this field of private life being protected by various laws is considered to be ones own property.
No matter how a person is well-known his emotional and sexual life belongs to a field beyond the information (knowledge) of outsiders (others).
The values of ones family life, letters, reminiscences are also included in the field of privacy.
One’s field of privacy has to be concidered as one which is to be known by non expect himself. One may reveal and sympathise his secrets with one another but this situation can’t in a way be interpreted that it loses it privacy and be infiltrated by others.Even in this case the one whom the secrets has been transferred should preserve them and not to communicate with others.
If he doesn’t comply with it then he’s added as one violating the personal right. (3)
The Field of Private is one whichis shared by one’s intimacies and to be kept closed to outsiders (others). What is meant by imtimacies are the people who share the same house, working together in the some job-site and having day-today chats. The scope of intimacies varies according to people. (4)
Examples of the violation to Personal Field of life are as follows:
- To obtaion or seize telegram massages or telephone conversations,
- To use observing electronic devices or other systems of listening,
- Recording and projecting by cameras or motion picture technigues,
- To be disturbed by Press or the members of other Communicative groups,
- The knowledge being disclosed by professional soliotors goverment authorities to be kept as secrecy,
- To express the events to public concerning to private life,
- To disclose the persons (by watching, followin or telephoning. (5)
- Technigue openly inclined to trespass the rivate field of personality. Tape recorders and modern listening devicesare apt to do away (remove) the aforementioned fields. No one knows how far this techinical progress will proceed however one thing is certain that technigue has been constantly progressing so far and in a near future there won’t exist any private field of privacyaway from the ears or eyes of outsiders.
Publicity hasalso been interverning the most hidden field of privacy that is thinking.
Thoughts belonging to this field will be disclosed by lyingmachines. (6)
The field of privacyalongwith fieldss of mystery who have to be kept remote from outsiders information, belong to the individual moral values. To be informed about the mysteries and transfer it to others by infiltrating into the field of privacy which is kept as secret as not be seen, heard or known by the individual, is an open aggression towards to the personal rights.
The Private Field of life is the one which is kept as secret as not known by others.
The individual keeps it for himself and doesn’t want to bshare it with others. Among the individuals acquaintences his family and close relatives have profound importance.
If one has got epilepsy than only the people abiding with him have the right to know about it, a job-site whose economic positionsgoing bad should only be known by people working there. In case a person tells about acertain people or institutions to certain people during intimate chats he also wants them to be kept as secrets.
All of these aboves mentioned situations are included in the private field of life.
If this field is infiltrated by the people, outside one’s acguintances and be informed about the things concerning about him and those near to him, is also an open insult towards personal rights and it is also protected like the personal field of life by the same ways.
Member of Press in some cases may obtain some secrets without the consent of the owners while they are doing their own business. This situation may happen as a naturel result of the freedom of press to inform and collect the news. For example members of press in order to investigate a certain affair (happening) may enter into the house , office, business enterprise and have a talk with them. They may also enter into hospitals, resthomes, goverment offices and investigate some affairs. While doing these, they may also obtain some secrets in the same way.This situation bears responsibility from the point of private law if not from the point creminal law. (7)
This is a situation where the owner of the secret expresses it to a member of a press may obtain some personal secrets by disguising their identity and establish relations with the secrets owner. This is also a situation where a secret being obtained unwillingly and without authorisation. Revealing the secrets obtained in this way is an illegal violation towards the field of privacy. Because here also thara is a member of press participating a secret with its owner on the assumption that is won’t be revealed to others.
Without a rightful reason, the saiid member of the press has no right to reveal it to others or to the public opinion. (8)
The Common Field of Life is a field as a result of joining the social life being shared with the other individuals. The events happening in this field and the persons in it are seen or heard there fore it is nearly impossible them to be kept as secrets.
For instance to mark (act) or to take social responsibilities as speakers or artists where everbody can be present the said persons have been integrated with the public as a result of their jobs and interest (efforts).
This personal field as it is not included in the field of secrecy isn’t a part of personal rights and it can’t be kept closed against the intruders infitrating, informing and revealing them to others.
The offences towards the personal right as afore mentioned, may happen in various forms by radio and television. Particularly it presents its self as getting information, watching secretly and reading the invidividuals letters, reminiscensis, (memories) , secretdocuments by infiltrating into the field secrecy in a way mystery.
To listen secretly can be carried out by listening without any device from a normal hearing distance or by technical devices that might catch and tranfer the conversations from long distances. As a person might overhear a conversation taking place in a room merely by leaning on a door. He might also do it with highly developed technical devices placed at certain places.
At present as a result of inconceivable development of technigue the conversations might be heard without making them aware. For instance a hidden, mini microphone can be placed on the top of a nail which is nailed under the wall paper or on marrows, headbands, telephone handsets, fountainpens, in the shape of coins handles of spectacles. These mini receptorsand transmittersare the most dangerous devices providing to infiltrate into the mysterious field of life (right of privacy). Hidden watching can either be done by naked eyes or by means of technicals devices. For instance watching some one from the keyholes or climbing the trees inside the the rooms or houses and with mirrors, binocles infrastructre headlights, teleobjectives are the violations committed towards private field of life.
As it is guite, difficult to determine that a certain, place being constantly watched, it is also not so easy to claim that these deeds are gualifield as violations into the secret field.
Reading secretly may occur in the instances as trespassing into one’s house or job-site and read his letters, reminiscenses documents or to be informed about the contets of the devices of communication by obtaining them.
Such commitments that are qualifield as violations into the private field of one’s life not only remain as merely being informed of them but may be recorded into sound bands or be transferred into photocopies and movies by technical devices.
In this situation as the obtained documents will be constantly at hand it may be claimed of an incessant violation.
To record one’s conversation into sound-bands, to take his pictures by hidden cameras, film machines to fix his documents and letters by film and photocopy machines a violation will have occurred . (9)
Considering these situations we may point out (declare) about secret records belonging to private life.
If the secret recording system established then the fear and distrust prevail in the society reulting to minimise the social relations and thara will be poisonous media as an obstacle of the individuals right to develop his meterial and moral existence.(10)
One way of violations (aggressions) by radio and television towords the individual’s right is to take them under record, on the other hand from the point of law their publications and transferring one’s letter, documents, reminiscences, secretly taken photos and films, conversations taken into tape recorder or be published for the others interest ( to the knowledge of others)
If somebody takes documents like letters, writtings etc. From some one then he7s obliged to keeh their secrecy and not to express the contents without the consent of the owner. Because such documents will generally include the secrets (mysteries) between the sender and the receiver. However if these documents include the matters beyond the secret and private field that is belonging to common field of life than it can’t be claimed as illegal such knowledge to be transferred to others.
In case a person allows his documents, memories, speeches or appearances to be published then publishing them differently or more comprehensivelyis also added as an violation of the right of privacy. (11)
For those who have been well-known by the public or civil servants right of privacy is more infiltrated than the others. Especially while the press is transferring some parts of the private life of such people to the public, will have carried a public duty as a necessarily such people should tolerate those matters to be revealed unless they have a higher interest frow the public7s interest. For instance for an ordinary person his curriculum vitae, that is where and when he was born, the identities of his parents, his job, can’t be published without his consent where as for a well-known and popular person it isn’t considered the same. They might as well be published.
Researches and investigations for the sake of enlightment of historical events may also excuse the infiltration into the private field of life of the people who have lived in the past and have been a part of it (have merged with it) because the public has prionity in the designation of historical events but while such deeds are taking place the persons whose personal life are interested should have higher interests and collecting information about historical events shouldn(t exceed certain boun daries.
A certain private interest may also excuse infiltrating into the other’s secret and private fields. Forinstance while husbandsand wives have no right to reveal the secrets (mysteries) that have happened in their family life on the other hand in a divorce case such revealing might as well be excused. Or in a paternity case the mother of the illegitimate child may be excused for disclosing ( revealing) some secret events whice has taken place between her and naturel father in order to prove her allegation (claim).
In similar cases infiltrating ithe secret field shouldn’t be taken into account as illegal (unjust). (12)
On the other hand the private life of politicians their certain behaviours and certain evnts concerning their private life shouldn’t be published in the press unless their consent and without concerning their public duties to be fulfilled in the prover way and having no negative effect on them.
As for the famous persons in the society, their game won’t exusetheir private life to be published in the press with all its details and so to be informed by everbody. It isn’t right to publish the events concerning a famous persons private life without his consent.
Such publications may only be added right if they are concerned with the reasons of their fame or necessary for him to be acknowledged. The publications beyond this criteriam are illegal unless the consent of the said person.
Besides such persons name shouldn’t be exploited for the sake advertisement other wise that will also be another illegal deed.
The violation by explaining and publishing the matters concerning the privacy of politicians and some contemporary well-known people may be legal or illegal. The criterion is the social interest (benefit) and the proportion between the seriousness of the violation and the social benefit as its result. (13)
The above mentioned right of privacy along with the Constitutional protection have also been protected by Penal Code with the section of Confinemant and penalties in an effective way against the offencescoming from radio and TV broadcast.
Thought in Turkish Penal Code there isn’t acertain section as the “right of privacy the immunity of Residence and Privacy of Communication. They have been taken under an effective legalprotection as they are added as the extension of private life or special elements of it.
In fact, The Second Section of Second book of Turkish Penal Code has got title “ The Crimes against the Immunity of Residence.
Article 193 refers about the violationof the civilians Article 194 a civil servants. They are both be considered as illegal deeds (actions).
However in both Articles refers about the infiltrating into the Residence. Where as Article 20 of Turkish Consititutian refers about immunity of residence. In view of this article we might claim that one’s residence may be infiltrated. (watching from outside, listening by a device taking photos) It’s cearly seen that. Our Consititution have clearly stated the protection of the immunity of Recidence in a larger scale than the Turkish Penal Code. For these reason Article 193 and 194 should be revised in compliance with the Article 20 of the Constitution.
Here again Turkish Penal Code Second Section Fifth Chapter (Article 195-200) having the title as : “ The Crimes Against the Immunity of Secrets” and has designated the crimes against the offences of the freedom of communication.
Article 195 whomever obtains or reveals on purpose (deliberately) the contents of communicative matters (objects).
Article 196 whomever does away (destroys) the communicative matters (objects).
Article 197 whomever reveals or publishes the contents of communicative matters (objects) without the consent of the sender.
Article 200 in case the contents of a communicative matter (object) are seized or closed one to be opened by a PTT civil servant exploiting his official position, second paragraph of the said article in case the contents of a communicative matter (object) are destroyed by a PTT Civil servant committing the same action. The ones who commit the said actions are punished.
Except the deeds of PTT civil servant other people’s similar commitments to be punished are subject to be complaints of the injured parties.
Finally, in Turkey the right of privacy is under the protection of law as the countries whose systems of law are quite developed. The outlines of this protection have stated by the views (opinions) of Turkish men of law and Turkish Jurisprudence.
However the above mentioned protection has been fulfilled more by confinements and fines, that have taken place in Turkish Penal Code because of the inefficiency of Turkish material and moral Compensation Law.
END-NOTES
(1) Danisman, Ahmet, The Protection of life from the Point of Criminal Law, Konya, 1991, p.2
(2) Lucien MARTIN, “Le secret de la vie priviee” , rev. Trim. Dr. Civ. , 1959, p.228
(3) Zevkliler, ibid, p.396
(4) Tandogan, haluk, Procedure of the protection of personality against the violance of contracts and the protection of civil by against the Violation by Press AHFM, c.xx, a.1-3
(5) Danisman, ibid, p.10
(6) Strebert, matters(points) concerning civil rights, Translated by Bilge Oztan, Auhfd,1969, C:XXVI, p.218-219
(7) Tandogan, ibid article, p.26-27
(8) Kilicoglu, ibid, p.93-95
(9) Zevkliler, ibid, p.398, RIKLIN, Franz, Der Schutz der Personlichkeit Gegenuber Eingriffen Durch Radio un6d Fernsehen Nach Schweizeischem Privatrecht, Freiburg, 1969, p.202-205, HUBMANN, Heinrich, Das Personlichkeitsrecht, 2.Aufl.Köln: 167, p.523
(10) saglam, Fazil, Secret sound recording from the point of Turkish and German Laws, AUSBF, Der. Volume: XXX, S:1-4, 1975, p.111
(11) Zevkliler, ibid, p.399-400, Rikklin, ibid, p.266
(12) Zevkliler, ibid, p.438
(13) Kaplan, ibid article, p.219
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