Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Expands Expression
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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.
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.
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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression. It is speculated that the decision of the Constitutional Court in general can be applied to protect freedom of expression regarding social media in general. Specifically, in paragraph 39 of its decision, the Court notes that “[t]he Internet has a significant instrumental importance in modern democracies in terms of the exercise of fundamental rights and freedoms, specifically of the freedom of expression. The social media platform that the Internet provides is of an indispensable quality for individuals to express, mutually share and disseminate their information and thoughts.” This ruling acknowledges the essential utility of social media to freedom of expression. Thus, the decision could potentially be referenced in future litigations concerning the internet and freedom of expression issues.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The European Court of Human Rights held that whether the subordination of the right to freedom of expression to the protection of one’s right to privacy is justified, certain factors must be considered, such as the contribution of the information to the general interest, the subject of the information, the method of obtaining the information and its veracity, the content and consequences of its publication.
According to the European Court of Human Rights, restrictive measures against newspaper publications must be balanced against the essential role played by the press for ensuring the proper functioning of democracy. Legitimate grounds for limiting the freedom of press include the protection of national security or territorial integrity against the threat of violence or the prevention of disorder or crime.
Under Article 26 of Turkey’s Constitution: “Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities.”
Case significance refers to how influential the case is and how its significance changes over time.
Constitutional Court of Turkey is the final arbiter of Constitutional issues in general. More specifically, its decisions is particularly binding on government regulators and the other branches of the Turkish government.
The decision of the Constitutional Court can be influential in national and international jurisdictions because it directly deals with the freedom of expression and its limitations in the context of modern social media platforms.
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