Can a Social Media Photo Be Used in a News Story in Turkey?

The short answer

Being publicly visible on social media does not amount to permission to use. There is no rule in the statute saying "content that has been disclosed to the public is free to use". FSEK Article 7 defines disclosure to the public, but disclosure is only a precondition for certain specific exceptions such as Articles 34 and 35; on its own it creates no freedom to use.

• The author of a photograph is the person who took it; using it requires permission within the scope of FSEK Articles 20-25.
• Under FSEK Article 52 that permission must be in writing, and each of the economic rights transferred must be specified separately.
• If a recognisable person appears in the photograph, FSEK Article 86 applies in addition; this is a second obstacle, independent of authorship.
• Where the use is in the nature of news and tied to a daily event, Article 37 and Article 86(2)(3) open a limited space. That space is not absolute.
• In every case, the obligation to cite the source is assessed separately.

Where does a photograph sit within FSEK?

The statute does not put photographs in one single place. Those with aesthetic value are listed among works of fine art, technical and scientific ones among works of science and literature; and for those that fall into neither category there is a separate protective provision.

The most common mistake here is the defence that "this is an ordinary phone snapshot, not a work, so it is free". FSEK Article 84(3) closes that defence: the rule in Article 84 applies to photographs that do not qualify as works as well, meaning that the person who fixed or disseminated the image may prohibit a third party from reproducing or publishing it by using the same means, and the provisions on unfair competition come into play even where the infringer is not a merchant.

FSEK Article 86 - Pictures and portraits (text of the provision)

This is the central provision for using a photograph of a person in a news story. It applies whether or not the photograph qualifies as a work.

D) Pictures and portraits:
I - In general:

Article 86 - Even if they do not qualify as works, pictures and
portraits may not be exhibited or communicated to the public in any
other manner without the consent of the person depicted, or - if that
person has died - of those listed in the first paragraph of Article 19,
until 10 years have passed since the death of the person depicted.

Obtaining the consent referred to in the first paragraph is not
required for:
1. pictures of persons who play a role in the political and social
   life of the country;
2. pictures showing parades or official ceremonies or general
   assemblies in which the persons depicted took part;
3. pictures relating to daily events, and radio and film news.

(Third paragraph as amended: 23/1/2008-5728/145) In respect of those
who act contrary to the first paragraph, Article 49 of the Code of
Obligations and, where the conditions are met, Articles 134, 139 and
140 of the Turkish Penal Code shall apply.

(Fourth paragraph as amended: 23/1/2008-5728/145) Even in the cases
where publication is permitted under the first and second paragraphs,
Article 24 of the Turkish Civil Code is reserved.

The architecture of the provision is this: consent is the rule, and in three situations no consent is required. Those three situations cover the core of journalism - public figures, parades, ceremonies and general assemblies, pictures relating to daily events, and radio and film news.

• Article 86(2)(1) - "persons who play a role in the political and social life of the country": politicians, senior public officials, the subject of a public debate. An ordinary citizen does not fall within this sub-paragraph.
• Article 86(2)(2) - pictures showing a parade, official ceremony or general assembly in which the person concerned personally took part.
• Article 86(2)(3) - pictures relating to daily events, and radio and film news. This is the sub-paragraph most often relied on in journalism; but once the link to the "daily event" is broken, the basis falls away with it.
• Article 86(4) - even where these exceptions apply, Article 24 of the Turkish Civil Code (personality rights) is reserved. Saying "I am within an exception" therefore gives you no immunity against a claim that personality rights have been infringed.

Does uploading something to social media amount to giving permission?

No. FSEK Article 20(1) provides that economic rights are not dependent on one another and that dealing with one does not affect the others. A person publishing their own photograph on their own account has not thereby permitted that photograph to be reproduced, distributed, or communicated to the public on a news website. Article 52 additionally requires that contracts and dispositions concerning economic rights be in writing and that the rights they cover be specified one by one; a post being "public" is not a written assignment agreement. The broad licence clauses in platform terms of use will not rescue you either: in those texts the user grants the platform the authority to host, display and distribute, and that does not create a direct right of use for third parties - that is, for your news site.

• A platform licence is a bilateral relationship: it is formed between the user and the platform.
• For a third party to derive a right from that licence, the contract would have to contain an express sub-licence provision, and that provision would have to be applicable to you.
• Using the platform's own embed feature is not the same act as downloading the photograph and uploading it to your own server; we dealt with that distinction in detail in our article on the difference between embedding and copying.
• Taking a screenshot is itself an act of reproduction; the copyright assessment of screenshots is a separate subject.

FSEK Article 37 - the news exception and its limits

Article 37 opens a limited space for use for news purposes. The text of the provision reads:

Article 37 - (Amended: 21/2/2001 - 4630/19)

Provided that it is in the nature of news and does not exceed the
scope of informing the public, it is possible, in connection with
daily events, to record certain parts of intellectual and artistic
works onto devices serving the transmission of signs, sounds and/or
images. The parts so recorded may freely be reproduced, distributed,
performed, or broadcast by means such as radio and television. This
freedom may not be exercised in a manner that harms the legitimate
interests of the rights holder or that conflicts with a normal
exploitation of the work.

• Condition 1: the use must be in the nature of news.
• Condition 2: it must not exceed the scope of informing the public - decoration, clickbait or filling an archive goes beyond that scope.
• Condition 3: it must not harm the legitimate interests of the rights holder and must not conflict with a normal exploitation of the work.
• Limit: the provision speaks of taking "certain parts". Using a photograph in a way that stands in for the whole of it does not sit with that wording; and in practice, taking a "part" of a photograph is usually not possible at all.

There is one more point to watch. The text of Article 37 contains no express sentence requiring the source to be cited, and Article 37 does not appear among the provisions listed in FSEK Article 67(3) (Articles 32, 33, 34, 35, 36, 39, 40). Article 71(1)(3), by contrast, punishes "a person who quotes from a work without citing the source" without drawing any distinction between provisions. The practical conclusion: cite the source in every case. We set out how to do that, provision by provision, in our article on the forms of source attribution.

Recognisable persons, consent and personal data

If a person whose face can be made out appears in the photograph, three separate layers operate at once: FSEK Article 86 (consent), Article 24 of the Turkish Civil Code (personality rights, expressly reserved by Article 86(4)), and the personal data protection regime. An image of a face is personal data because it makes the person identifiable. The place of journalistic activity within the personal data regime is a separate discussion; we address it in our article on the use of personal data in news reporting. What has to be underlined here is that falling within an exception under FSEK Article 86 does not remove the obligation to carry out a separate assessment under personal data legislation.

Decision tree: ask these in order before you use it

1) WHO took the photograph?
   -> If unknown, do not use it. The account holder is NOT necessarily
      the photographer; the person who posted it may also have taken
      it from someone else.

2) Is there written permission from the photographer? (FSEK Art. 52)
   -> Yes -> which economic rights? (reproduction Art. 22 /
             distribution Art. 23 / communication to the public
             Art. 25 / adaptation Art. 21) each stated in writing.
   -> No  -> go to step 3.

3) Is the content "daily news", or is the photograph a WORK?
   -> Article 36(1) grants a freedom for news items, but it covers
      the text; a photograph is subject to the regime of
      Art. 4(1)(5) - Art. 2(3) - Art. 84(3).

4) Does it pass the three-step test in Article 37?
   -> nature of news + limit of informing the public + no conflict
      with normal exploitation. Without all three, you cannot rely
      on it.

5) Is there a RECOGNISABLE person in the frame? (Art. 86)
   -> No  -> go to step 6.
   -> Yes -> does it fall within one of the exceptions?
             (1) public figure / (2) parade, ceremony or general
             assembly / (3) picture relating to a daily event
             If not, consent is mandatory.
             Even if it does, Civil Code Art. 24 is reserved
             (Art. 86(4)).

6) Has the source been cited? (to the standard of Art. 36(3))
   -> No -> risk under Art. 71(1)(3).

7) If there is no basis at all -> DO NOT USE IT, or obtain written
   permission.

Pre-publication checklist

[ ] The original source of the photograph has been identified
    (reverse image search carried out)
[ ] Whether the account holder is the photographer has been verified
[ ] Written permission obtained / if not, the exception relied on has
    been written down
[ ] The article number relied on has been recorded in the story notes
    (Art. 37 / Art. 86(2)(?))
[ ] Whether the people in the frame are recognisable, and whether they
    are public figures, has been assessed
[ ] Whether the image shows a child or a victim has been separately
    checked
[ ] Source credit line prepared: photographer's name + platform + date
[ ] Screenshot + URL + date of access saved to the archive
[ ] The procedure for a takedown request has been wired into the
    workflow
[ ] Use of the image independently of the story (gallery, cover page,
    archive) has been assessed separately - the basis in Article 37
    does not reach that far

Permission request template

In practice the fastest and safest route is to ask for permission. Because FSEK Article 52 requires written form and requires the rights to be specified one by one, build the text of your message accordingly:

Subject: Permission to use a photograph in the story "[headline]"

Dear [Full Name],

We would like to use the photograph at [URL], which you published on
[date] on your [platform] account, in the story headlined
"[headline]" to be published on the news website [publication name].

The permission we are requesting is limited to the following economic
rights under Law No. 5846:
  - Reproduction (Article 22)
  - Distribution (Article 23)
  - Communication to the public by means serving the transmission of
    signs, sounds and/or images (Article 25)

Scope of use    : the above story only, together with the social
                  media announcements of that story
Term            : indefinite / until [date]
Credit line     : "Photograph: [Full Name] / [platform]"
Fee             : none / [amount] TRY

It is enough to reply to this message with the words "I give
permission"; if you would prefer it, we can also send you a signed
permission document.

[Publication name] / [Responsible editor or editor's name]
[Contact details]

What follows from an infringement?

The response to unauthorised use is not merely that the content is taken down. FSEK makes several claims available at the same time, and some of them operate without any need to show fault. In addition, under Article 75(1) the investigation and prosecution of the offences in Articles 71 and 72 depend on a complaint; the complaint must be accompanied by documents proving ownership of the rights, submitted to the office of the public prosecutor.

The claim for up to three times the fee under Article 68(1) is in practice the route most frequently taken against news websites; because neither fault nor loss has to be proved, the room for a defence is narrow. We explained in detail how that claim is calculated and what it rests on in our article on calculating damages for copyright infringement.

A durable fix in the newsroom

Leaving the decision on image sourcing to each reporter individually is not sustainable. Keep a field attached to the image itself that records the permission status, the credit line and the article relied on; and if that field is empty in the publishing workflow, the story does not go live. Because a licence/permission field and a mandatory credit line can be defined on image records in the KEYDAL news publishing software, you can enforce this check without leaving it to an editor's goodwill.