Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The European Court of Human Rights (ECHR) overturned a Turkish interim court’s judgment ordering wholesale blocking of online content. The applicant, a Turkish PhD student running a website hosted by the Google sites service, claimed violation of his freedom of expression when the Court of First Instance blocked all access to Google sites under the domestic law. The interim court’s injunction was promulgated in a criminal proceeding against the owner of another website hosted by Google containing content alleged to be offensive to the memory of Mustafa Kemal Atatürk, the founder of the Turkish Republic. The Court unanimously found that the decision to block access to Google sites violated Article 10 of the European Convention on Human Rights (Convention). The judgment of ECHR explicitly reinforced individual’s right to access internet, confirming the internet as a “principle means” of exercising right to freedom of expression and information.
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. On the 23rd of June 2009, the Turkish Denizli Criminal Court of First Instance ordered the blocking of another Internet site also hosted by Google, whose owner had been accused of insulting the memory of Atatürk.
Post the submission of the blocking order to the Telecommunications Directorate (TİB) for execution, TİB sought an extension of the scope of the order, requesting blocking access to Google sites which hosted not only the site in question, but also the applicant’s website. According to TİB, the only technical means of blocking the offending site was to block all access to Google sites in general, seeing as the offender did not have a certificate and lived abroad.
On June 24, 2009, following the request by TİB, the Denizli Criminal Court ordered blocking of all access to Google sites in accordance with section 8 of Law no. 5651 (Turkish domestic law). In consequence, Mr Yıldırım was unable to access his own site. By an application dated July 1, 2009, Mr Yıldırım sought to set aside the order of the domestic court by relying on Article 10 of the Convention, claiming that the measure infringed his right to freedom to receive and impart information and ideas. According to him, alternative methods to block access solely to the offending website should have been chosen in order to prevent other websites from being affected by the measure. His attempts to regain access to his website however proved unsuccessful as the Denizli Criminal Court subsequently upheld the order, dismissed the applicant’s application on July 13, 2009.
By an application dated January 12, 2010, the applicant submitted before the ECHR that the measures taken were disproportionate in light of the lack of an apparent connection between blocking access to illegal content and his inability to access his website. This, in his view, amounted to “indirect censorship” [p. 14]. He further maintained that the proceedings leading to the blocking of Google Sites could not be regarded as fair and impartial. As an intervening party, the Open Society Justice Initiative (OSJI) also noted that such a measure amounted to a “prior restraint on publication” and posed a risk of “collateral censorship”. [p.15]. OSJI also contested that the Turkish domestic law failed to impose adequate safeguards against arbitrariness, with no requirement of notification of blocking orders to affected parties.
On the other hand, 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 Second Section of the European Court of Human Rights delivered the preliminary ruling in the matter. The principle question before the Court was whether it was legal to block access to the applicant’s website by an order of the Denizli Criminal Court in a criminal proceeding against the owner of another site accused of insulting the memory of Atatürk.
On the initial question concerning prior restraint imposed without a ruling on merits by the domestic court, the Court began by observing that Article 10 of the Convention, by itself, does not prohibit prior restraints on publications [citing its judgment in The Sunday Times v. the United Kingdom (26 April 1979, Series A no. 30) and in markt intern Verlag GmbH and Klaus Beermann v. Germany (20 November 1989, Series A no. 165)]. However, it acknowledged that all prior restraints call for a very strict scrutiny, and especially so in the present case, given the perishable nature of news. Since the measure blocking access was to remain in place until the removal of illegal content or a decision on merits was given, the action constituted a prior restraint and “was bound to have an influence on the accessibility of the internet” [p.17]. The Court also reiterated the importance of internet in exercising freedom of expression [quoting Times Newspaper Ltd v. the United Kingdom (nos. 3002/03 and 23676/03, § 27, ECHR 2009)], before proceeding to acknowledge that as a service, Google Sites constitutes a means to exercise freedom of expression.
Next, it delved into the scope of Article 10, concluding that it applies not only to the “content of information but also to means of dissemination” [p. 16]. In its analysis, the ECHR observed that the right to freedom of expression is two-fold, encompassing not only the right to transmit but also to receive information A restriction on the means of dissemination, thus, automatically interfered with the right to receive and impact information. Consequently, the State failed to exercise its obligation under Article 10. This was perceived by the Court as a “restriction” amounting to an interference by public authority with the right of the applicant to freedom of expression.
It is interesting to note that the Court accepted that the measure was not a wholesale ban but rather a restriction on internet access. However, the scope of restriction was not weighed significantly in determining the outcome by the Court given the role of the internet as a significant means to exercise freedom of expression.
An interference in the nature prescribed by the Denizli Criminal Court would ordinarily constitute a breach unless it is (a) “prescribed by law”, (b) pursues a legitimate aim as provided under Article 10 § 2 and (c) is necessary in a democratic society [p.18]. The Court, therefore, next considered the meaning of the term “prescribed by law” under Article 10 § 2. It remarked that not only does any action prescribed by law require the impugned measure to have some basis under domestic legislations, but also refers to the quality of law in question. Interestingly, a rule is required to be “foreseeable” (i.e. accessibility of the law to the person concerned, ability to foresee the consequences and compatibility with the rule of law). While the blocking order in the present case had a legal basis by virtue of section 8(1) of Law no. 5651, the applicant had argued that it did not meet the requirements of foreseeability and accessibility.
In view of the Court, the application of section 8(1) of Law no. 5651 by the Denizli Criminal Court did not satisfy the foreseeability requirement, nor did it provide adequate protection to the applicant as he was so entitled by the rule of law. The law was in direct conflict with the wording under Art. 10 paragraph 1 (which protects the right set forth in the Article “regardless of the frontiers”) and led to arbitrary effects well beyond the mere blocking of the offending site. The Court also held that the judicial review mechanism was insufficient to meet the criteria for avoiding abuse in the absence of adequate safeguards under the domestic law. The conclusions were drawn by the Court for following reasons:
With regards to the inadequate guarantees provided by Law no. 5651 concerning 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 minimum criteria for Convention-compatible legislation on Internet blocking measures. The court held that Turkey was to pay the applicant 7,500 euros in respect of non pecuniary damage.
In a rather elaborate concurring opinion written by Judge Pinto de Alburqueque highlighting the deficiency in the reasoning of the majority to set forth fundamental principles applicable to restrictions on freedom of expression, he emphasized that a minimum criteria for a legislation befitting the principles set forth in the Convention includes:
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands freedom of expression. The case is significant as being the first where a question of freedom of expression on Web 2.0 platforms was placed before the European Court of Human Rights. Legislations concerning the Internet are particularly dynamic and fragmented in light of the rapidly changing technologies, but the decision of the Court laid a clear classification concerning the scope of blocking orders and the procedural safeguards they must meet in order to be considered “valid”. The decision upholds the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information as well as a right to unfettered access to internet, and was seen as a victory for online freedoms at a time when governments around the world were increasingly seeking to regulate the Internet.
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.
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