The Right To The Protection of Personal Data Under The Constitution of The Republic of Türki̇ye

Constitutional Regulation

“Everyone has the right to demand the protection of their personal data. This right includes being informed of personal data concerning oneself, accessing such data, requesting their rectification or erasure, and learning whether they are being used in line with their purposes. Personal data may only be processed in cases provided by law or with the explicit consent of the individual.”

While some constitutions enshrine the right to the protection of personal data as a fundamental right, others safeguard it within the scope of the right to respect for private life. For instance, the Constitutions of Belgium (1831), Sweden (1975), Portugal (1976), and Spain (1978) explicitly recognized this right, reflecting its development into an autonomous right. In some jurisdictions, however, this right is not expressly regulated in constitutions but is considered within the framework of the right to privacy. In certain countries, it is instead governed by statutory law.

In Türkiye, Article 20 of the Constitution was amended by Article 2 of the Law No. 5982, dated 07.05.2010, introducing the following provision: “Everyone has the right to demand the protection of their personal data. This right includes being informed of personal data concerning oneself, accessing such data, requesting their rectification or erasure, and learning whether they are being used in line with their purposes. Personal data may only be processed in cases provided by law or with the explicit consent of the individual. Principles and procedures regarding the protection of personal data shall be laid down by law.”

The reasoning of the amendment was as follows: “Although the Constitution contains indirect provisions on the protection of personal data, these are insufficient. Comparative law and international instruments to which we are a party emphasize the importance of personal data protection. With this amendment, everyone’s right to demand the protection of personal data is guaranteed as a constitutional right. Accordingly, the rights and authorities individuals possess over their personal data and the conditions under which such data may be processed are regulated, while principles and procedures for protection of personal data are foreseen to be determined by law.”

Following this amendment, Article 20 titled “Privacy of Private Life,” within Part Two “Fundamental Rights and Duties,” Section Two “Rights and Duties of the Individual,” of the Constitution, recognized the right to the protection of personal data as a separate fundamental right.

Historical Development

Prior to Law No. 5982, personal data was indirectly safeguarded under Article 20 of the Constitution, which stated: “Everyone has the right to demand respect for his or her private and family life. Privacy of private and family life shall not be violated.” Similarly, Article 8 of the European Convention on Human Rights (ECHR) provided: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The content of the amendment clarifies that individuals have the right to access their personal data, to request correction or erasure, to learn whether such data is being used in accordance with its purpose, and to demand the protection of their personal data. The Constitution further provides that the principles and procedures regarding personal data protection shall be determined by law. In this respect, the Law on the Protection of Personal Data No. 6698 was enacted and published in the Official Gazette on 07.04.2016.

Positive Obligations of the State

By directly enshrining the right to the protection of personal data, the Constitution imposes certain positive obligations on the State. The mere recognition of rights in constitutions does not guarantee their accessibility. The State must establish and maintain institutional structures to ensure the exercise of these rights. Moreover, the State must adopt legal norms ensuring that private and legal persons respect personal data. Additionally, through education systems, the State must promote ethical values, instill respect for privacy and human rights, and foster behavioral principles ensuring broad respect for individual freedoms.

Impact on Other Fundamental Rights

The constitutional protection of personal data also contributes to the protection of other fundamental rights and freedoms. For instance, the collection and classification of personal data based on political beliefs or religious affiliations may hinder the enjoyment of freedom of thought, expression, association, and assembly. Similarly, recording and storing the identity or images of individuals attending demonstrations may jeopardize these rights.

In the case of I.B. v. Greece, the applicant complained to the European Court of Human Rights (ECtHR) that he had been dismissed and discriminated against after his HIV-positive status was disclosed to his employer. The Court found a violation of his rights.^[1]

Thus, the right to personal data protection constitutes a precondition for the effective enjoyment of other rights. It directly affects the realization and accessibility of several fundamental rights and freedoms.

Limits of the Right

Although recognized as a constitutional right, the protection of personal data is not an absolute right. It may be restricted to safeguard other fundamental rights. For instance, under Article 26 of the Constitution, “Everyone has the right to express and disseminate his or her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively.” This freedom also includes the liberty to receive and impart information. In some cases, the right to personal data protection may conflict with freedom of expression and the press. In such situations, a balancing must be struck to determine which right better serves human dignity in the specific case. Each situation therefore requires a case-by-case assessment.

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