Case Summary and Outcome

The Turkish Constitutional Court held that blocking access to news articles on account of a violation of reputation and personal rights infringed the constitutionally-protected right to freedom of expression. Five news websites had had access to various articles blocked after lower courts had ruled that the access-blocking was necessary to protect prominent individuals’ reputation and personal rights. The decisions were made under a provision of Turkish law which permitted the blocking and provided no opportunity to realistically challenge the decision. The Constitutional Court held that domestic law lacked procedural safeguards against excessive and arbitrary Internet blocking measures and that the provision was the source of systematic violation of the right to freedom of expression online and of media freedom in Turkey. The judgment contained a series of recommendations on how to make the law constitutionally compliant and a copy was shared with the legislature.

Facts

Five Turkish companies which owned nationally-broadcast news websites, Diken, Sol, GazeteDuvar, Arti Gerçek, Birgun, Tarimdanhaberi, published news articles related to critical political issues in Turkey. One of the articles they featured was by a journalist who had authored an article on the website of the newspaper Cumhuriyet about the extrajudicial killing of a journalist in 1993. Various decisions of criminal judgeships of peace led to the blocking of the access to a total of 129 URL addresses provided by these websites under Article 9 of the Law no. 5651 on Regulating Internet Publications and Combating Crimes Committed by Means of Such Publications. The justification of all the decisions was the protection of the reputation and personal rights of the individuals who were subjects of the news articles – including politicians, public officials and a former military commander.

Under Article 9 real persons, legal entities and institutions who claim that their “personal rights” have been violated by the content published on the Internet may apply for removal of that content by directly addressing the content or hosting provider or may also apply directly to the judge of the peace for blocking access to the relevant content. The judge shall decide whether to block access within a period of 24 hours without holding a hearing. Access-blocking decisions may be appealed to the judge of the peace bearing the next number. This decision is final and cannot be appealed to higher courts.

After their applications for review were all rejected, the news websites brought separate applications before the Constitutional Court, arguing that their rights to freedom of expression and to an effective remedy were violated by the decisions which blocked access to the articles. The Constitutional Court joined all nine individual applications as all they all concerned access blocking to the content of the URLs by the criminal judges of peace upon request of individuals who had argued that the news articles contained statements that unlawfully harmed their reputations and good names.

Decision Overview

The central issue for the Constitutional Court’s determination was whether Article 9 of the Law No. 5671 – the legal basis for the interference in the right to freedom of expression. – satisfied the conditions of legal security and legal certainty.

The Court noted that Article 1 of the Law no. 5671 conditioned blocking access to online content upon existence of a “suspicion of crime”, which means that the remedy of blocking access on the grounds of an attack against personal rights can only apply when there is suspicion that the content constitutes a crime. However, the Court emphasized that that despite the wording of Article 1, Article 9 of the Law did not explicitly mention that the scope of the access-blocking measure was confined to circumstances where the content constituted a crime, and did not set a threshold of severity of the wrongful act against personal rights to justify the recourse to access blocking. The Court thus acknowledged the shortcomings of Article 9 in respect of the legality of the interference, considering the scope, aim and limits of the restriction on freedom of expression it permitted. However, the Court held that, in the circumstances of the present case, its evaluation as to the legality clause could not be dissociated from the conformity of the decisions of the courts of instance to the requirements of democratic society. After having identified that the legitimate aim of the interference was the protection of the reputation and the rights of the others, it examined the case in terms of the necessity of the interference in a democratic society.

The Court referred to its jurisprudence on the Law on Regulating Internet Publications and Combating Crimes Committed by Means of Such Publications, where it had laid down the general rules with regard to Article 9. The Court reiterated that there were no procedural safeguards for the media outlets affected by access blocking and that consequently it would be difficult to strike a fair balance between the competing interests, and so access blocking should only be granted in cases of prima facie violations. The procedure under Article 9 is thus an exceptional remedy that should be only implemented in cases where online content blatantly violates personal rights, for example, the case of publication of naked pictures or videos on the Internet. The Court stressed that lower courts of instance must therefore substantiate the need to promptly put an end to the attack that allegedly violates the reputation and honour of the complainant without conducting an adversarial proceeding.

The Constitutional Court emphasized the necessity to strike a fair balance between the freedom of expression of a media applicant and the reputation and personal rights of a complainant in the application of the prima facie doctrine. The Court referred to its earlier decisions in similar cases where the publication contributed to a debate of public interest, had a factual basis and was newsworthy and where it had considered the identity of the complainant, the circumstances in which the content was published, the impact of the publication on the life of the complainant and whether the content on the Internet attracted public attention.

Applying these principles to the present case, the Court held that in none of the instances had the judges of the peace who issued access blocking orders established the need to promptly put an end to the interference they deemed to violate the personal rights of the complainants without conducting an adversarial proceeding. The Court found that the judges did not strike a fair balance between the competing rights of the interested parties. It also held that the judges’ decisions in rejecting the review applications were not reasoned and did not assess whether the original decisions had applied the prima facie doctrine or examined the news websites’ objections to the access-blocking decisions.

The Court assessed the content of the articles that had been blocked and observed that some of the news sought to raise public awareness of social issues, some facilitated the participation of the citizens in decision-making processes by reporting on the activities of and statements by the politicians and others intended to subject the activities of public figures and institutions to public scrutiny. As such, the Court held that the news in question fell within the scope of the duty and responsibility of the press to report.

The Court noted that the access-blocking of the articles was of an indefinite duration, and held that – in the absence of any relevant and sufficient grounds – the access-blocking decisions in the form of a measure of indefinite duration was a disproportionate interference with the freedom of expression and press.

Accordingly, the Court held that the access-blocking decisions complained of did not correspond to a pressing social need and violated the right to freedom of expression and of press guaranteed under Article 26 and 28 of the Constitution. Most crucially, the Court held that the violation of freedom of expression in the present case directly resulted from Article 9 of the Law, which failed to provide the procedural safeguards capable of protecting the owners of online media against arbitrary interferences from the public authorities.

In finding that the shortcomings of the legal framework constituted a systematic problem, the Court pointed to the need to reform the system governing restrictions of Internet freedom, and urged the legislature to take into account the following suggestions with regard to the minimum safeguards for preventing violations of Article 26 of the Constitution: 1) Article 9 should be reformulated so that the scope and legal nature of the procedure of access blocking is set out  in sufficiently clear and precise legal terms. 2) Article 9 should be harmonized with Article 1 of the Law that declares the aim and scope of the Law. 3) Article 9 should set out with a certain degree of clarity what legal consequences will arise from which behaviour, and what authority the public authorities will have in specific cases, and so it should determine the limits of the protection granted for personal rights and should set criteria or a threshold of minimum severity the wrongful act must attain to justify access blocking. 4) If the access blocking decision is considered to be a provisional measure, then the related proceedings should conform with the code of Criminal Procedure, and so whether to uphold or end access blocking must be decided in an adversarial proceeding that allows involvement of all parties. 5) When access to content is blocked upon request by individuals arguing that their personal rights has been violated and in case of appeal against this decision by those likely to be affected by it, it is incumbent on the state to establish a judicial mechanism whereby the content providers/online media owners have the opportunity to defend themselves, including inter alia by bringing counter-evidence in a forum in which they can be heard in an adversarial proceeding. The Court emphasized that the lack of an adversarial trial before the court that issued the original access blocking decision must be absolutely alleviated by the appeal instance. Since in this setting, the merits of the objection are to be examined for the first time before the appeal instance, it is of utmost importance to subject this decision to the oversight of a court of appeal or of cassation for preventing future violations of freedom of expression and press. 6) Regard must be had to the severity of the interference of access blocking, and the law should therefore provide the judges of peace with guidelines and should emphasize that blocking access to online media is an exceptional provisional measure which can only be decided as a measure of last resort when less intrusive means are not effective for combatting harmful content on the Internet. 7) The law must require judges to justify the urgency of immediate enforcement of the blocking measure and to strike a fair balance between the means of interference and the legitimate aim pursued, and must include alternative means of combatting harmful content on the Internet beyond access blocking.

The Court also held that there had been a violation of the right to an effective remedy under Article 40 of the Constitution, in conjunction with Article 26. The Court found that the remedy under Article 9 had no practical prospect of success and was not effective in the present case as although the new websites were able to bring proceedings seeking a review of the blocking measure, the court of appeal did not examine the merits of their grievance, undertake an assessment of necessity of the blocking measure in a democratic society or strike a fair balance between the competing interests.

The Court sent a copy of its judgment to the legislature, as a result of its finding that the violations directly resulted from the law.