Case Summary and Outcome

The Constitutional Court of Turkey ruled that the Presidency of Telecommunication and Communication’s complete ban on Twitter.com was unconstitutional because it violated the freedom of expression protected under Article 26 of Turkey’s Constitution.

Facts

On March 20, 2014, The Presidency of Telecommunication and Communication of Turkey (‘TIB”), a regulatory agency, completely blocked the access to Twitter.com.  The blockage occurred after the website’s failure to remove certain contents that allegedly violated the complainants’ right of privacy.

TIB defended the legality of the ban, claiming that it was in line with the court judgments, and was the only venue in preventing the irreparable injuries to the complainants.

In response to the ban, three active users of the website directly filed a complaint with the Constitutional Court of Turkey.  They contended that an action for annulment before the administrative judiciary bodies against TIB’s action would not provide an affective remedy, and that the blockage amounted to censorship prohibited by the Constitution and the European Convention on Human Rights. 

Decision Overview

The issues before the Constitutional Court in this case concerned: (1) whether there was an intervention by TIB; (2) whether the intervention was based on just reasons; and if so, (3) whether the intervention was required for the democratic order of society and proportional in remedying the resultant injuries.

The Court first referred to Article 26 of the Constitution that guarantees   “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.”  The Court interpreted that “[t]he Constitution guarantees not only the thoughts and convictions but also the styles, forms and tools of expression.”  The Court further viewed that in modern democracies, social media websites are indispensable means of expressing and sharing one’s thoughts and information.

As to whether a ban on means of expression is justified, the Court held that the restriction: (1) must seek to address a just and pressing social need; (2) must be the last remedy to resort to, and (3) must be proportional to its reasonable objectives and not so severe that the essence of the right would be infringed upon.  Otherwise, the ban cannot be considered as a measure in conformity with the requirements of the democratic order of the society. 

Applying the requirements to the case in hand, the Court found that even though TIB acted pursuant to the court judgments on just and pressing social need of protecting the right of privacy, its complete blockage of Twitter, rather than banning a specific URL address went beyond the scope of its authority given by the judgments.

Accordingly, the Court ruled the blockage of access to Twitter was a severe intervention on freedom of expression, in violation of Article 26 of the Constitution.  It ordered TIB to remove the ban and to restore unrestricted access to the website.