Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Expands Expression
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The European Court of Human Rights (ECtHR) held that Turkey violated Article 10 of the European Convention on Human Rights (ECHR) when it blocked access to all Google sites because of one Internet site facing criminal proceedings for insulting the memory of a former Turkish president. The court wrote that the right to freedom of expression is two-fold, encompassing not only the right to transmit but also to receive information, and that although Article 10 does not afford absolute protection against prior restraint, restrictions on freedom of expression do require strict judicial scrutiny.
On the 23rd of June 2009, the Turkish Denizli Criminal Court of First Instance ordered the blocking of an Internet site, whose owner had been accused of insulting the memory of Atatürk. The Telecommunications Directorate (TİB) stated that the only technical means of blocking the offending site, was to block all access to Google sites in general, seeing as the offender lived abroad.
The applicant, Ahmet Yıldırım, a Turkish national who was, at the time, living in Istanbul, owned and ran a website hosted by the Google Sites service, on which he published his academic work as well as his opinions on various matters. As a result of the order made by the Denizli Criminal Court, Mr Yıldırım was unable to access his own site. Mr Yıldırım submitted that the measure infringed his right to freedom to receive and impart information and ideas, relying on Article 10 of the European Convention on Human Rights.
The application was lodged with the European Court of Human Rights on 12 January 2010. There, the applicant submitted that the blocking of Google Sites amounted to indirect censorship, contending that the consequences that had resulted for him from the blocking order, namely his inability to access his own website, although the latter had no connection with the illegal content that had given rise to the blocking order in respect of Google Sites, had been disproportionate to the objectives pursued. He further maintained that the proceedings leading to the blocking of Google Sites could not be regarded as fair and impartial. The respondent State relied on domestic law, which stated that where a court orders the blocking of access to a specific website, it falls to the TİB to implement the measure. If the content provider or hosting service provider is abroad, the TİB may block all access to the pages of the intermediary service provider under section 8(3) and (4) of Law no. 5651.
The ECtHR held that the respondent Government did not satisfy the burden of showing that the imposition of such a restraint was justified. Having regard to the State’s negative obligation to refrain from interfering with the applicant’s freedom of expression on the Internet, to the application of Law no. 5651 by the domestic courts without any consideration of the Convention principles, to the lawful form and nature of the material published by the applicant and to the lack of any connection between his site and the allegedly illegal site, and after assessing the reasons given by the national authorities in the light of their narrow margin of appreciation, the Court held that there had been a violation of the applicant’s freedom of expression enshrined in Article 10 of the Convention.
In its analysis, the ECtHR observed that the right to freedom of expression is two-fold, encompassing not only the right to transmit but also to receive information, and that although Article 10 does not afford absolute protection against prior restraint, restrictions on freedom of expression do require strict judicial scrutiny.
With regards to the inadequate guarantees provided by Law no. 5651 with regard to the blocking of Internet publications, the Court also held that, based on Article 46, the respondent State had a duty to amend the legislation in line with the the minimum criteria for Convention-compatible legislation on Internet blocking measures, as set out by Judge Pinto De Albuquerque. The court held that Turkey was to pay the applicant 7,500 euros in respect of non pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision was seen as a victory for online freedoms at a time when governments around the world increasingly seek to regulate the Internet. The decision as such is not at all surprising, given the arbitrary effects of the measure by the Turkish Court, which were taken without considering the wider impact.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR decision puts ECHR States Parties on notice that an entire search engine cannot be blocked simply because domestically illegal content is obtainable through the use of the search engine.
Let us know if you notice errors or if the case analysis needs revision.