Case Summary and Outcome

The Turkish Constitutional Court held that the denial of a request for information regarding statistics on decisions blocking websites constituted a violation of freedom of expression. An academic and freedom of information activist had submitted a request to the Information Technologies and Communication Authority for detailed statistical information regarding access blocking decisions to websites for catalogue crimes and their legal grounds. The Court recognized that the activist had a “continuous need” to obtain information regarding access blocking practices and that such information was a prerequisite for the exercise of freedom of expression as he actively engages in academic and civil society roles in the fields of internet law and human rights. The Court held that the rejection of his request was a violation of freedom of expression.

---

Facts

On December 21, 2009, Yaman Akdeniz submitted a request to the Turkish Information Technologies and Communication Authority (“BTK”) for detailed information on the statistics regarding access blocking decisions to websites under the Turkish Right to Information Law. Akdeniz is a professor at Istanbul Bilgi University Law Faculty in Turkey and also an expert in internet law and human rights, and founder of the non-profit civil society organization cyber-rights.org and the website bilgiedinmehakki.org.

In 2011, he published a report on freedom of expression and the internet, which he prepared for the Organization for Security and Co-operation in Europe (OSCE) covering 56 countries. In 2016, Akdeniz authored the section on Turkey in a Council of Europe study analyzing the legal framework of internet content regulations, access blocking, filtering, and content removal practices. He is also involved with the Freedom of Expression Association, which annually releases the “EngelliWeb” report on Internet content blocking in Turkey.

Akdeniz had requested detailed statistics regarding access blocking decisions to websites for catalogue crimes under Article 8 of Law No. 5651, and the number of access blocking decisions outside the scope of Article 8, along with their legal grounds.

On December 30, 2009, the BTK rejected his request, stating that the requested information required “separate and special effort”, and, in this case, the request could be rejected under Article 7 of the Right to Information Law. It stated that information and documents related to criminal investigations and prosecutions were excluded from the scope of the Right to Information Law under Article 20, and information about decisions outside the scope of Article 8 of Law No. 5651 could not be obtained from the BTK but could be requested from the relevant decision-making authorities. Akdeniz appealed the rejection to the Review Board of Access to Information which dismissed the appeal on March 4, 2010.

On April 26, 2010, Akdeniz initiated legal proceedings arguing that the statistical information he requested was available at the BTK and that its disclosure was in the public interest. The Ankara 2^nd Administrative Court dismissed the case on October 27, 2011, finding that the BTK’s rejection was justified.

Akdeniz appealed the decision to the Tenth Chamber of the Council of State which dismissed the appeal on March 12, 2015.

Having exhausted all available national remedies, Akdeniz submitted an individual application to the Constitutional Court on April 5, 2016. The First Section of the Constitutional Court reviewed the application on April 13, 2022 and referred the case to the General Assembly of the Constitutional Court. The General Assembly decided to review the application on February 15, 2023.

---

Decision Overview

The Constitutional Court delivered a unanimous decision. The central issue for the Court’s determination was whether the denial of the request for access to information—regarding access blocking decisions to websites—held by public authorities constituted a violation of freedom of expression.

Akdeniz argued that his request had been rejected on unreasonable grounds and that the decisions of the courts dismissing his appeals were unjustified. He submitted that the statistics on access blocking decisions issued under Article 8 of Law No. 5651 were published on the BTK’s website monthly between May 2008 and May 2009 and that the sharing of statistics was then discontinued without any justification. Akdeniz argued that the rejection of the request on the grounds that it required “separate and special effort” was not a reasonable justification. He also submitted that the requested information could not be classified as information and documents related to criminal investigations and prosecutions under Article 20 of the Right to Information Law, and argued that his request did not pertain to the content of legal proceedings but rather concerned the number of websites that were blocked access on the grounds of constituting crimes. Akdeniz explained that his academic work in the fields of internet and human rights gave him a public watchdog role to inform the public through social media and the press about access blocking practices.

He noted that he had lodged appeals and submitted individual applications to the Constitutional Court against access blocking decisions to significant internet platforms such as Twitter and YouTube. Akdeniz submitted that the rejection of his request prevented him from obtaining information that was in the public interest, sharing it with the public, and contributing to the public debate, and was therefore a violation of his rights to access information, freedom of expression, and to a reasoned judgment. Akdeniz maintained that his application was compatible with the principles set by the European Court of Human Rights in the case of Magyar Helsinki Bizottság v. Hungary and that the information he sought was related to a matter of superior public interest. He maintained that his public watchdog role was in accordance with the European Court of Human Rights jurisprudence.

The Ministry of Justice argued that the assessment of the right to access information should follow the approach outlined by the European Court of Human Rights in the case of Magyar Helsinki Bizottsag v. Hungary. It submitted that access to information should either be necessitated by a definitive judicial decision or serve as a means to exercise the right to freedom of expression. It stated that, in the present case, the latter condition applies, and that Akdeniz needed to demonstrate that the information he requested was necessary for exercising his freedom of expression. The Ministry argued that Akdeniz had not explained the impact of the information refusal on his academic work nor showed evidence of being deprived of a specific interest. The Ministry submitted that it was appropriate to examine whether providing access to the information Akdeniz sought was a means of exercising his right to freedom of expression. It also maintained out that sufficient and relevant justifications were provided for the rejection of the request.

The Court conducted its assessment under Article 26 of the Constitution regulating freedom of expression, and Article 74 of the Constitution regulating the right to access information. The Court stated that the decision included an assessment of the circumstances in which requests from public authorities under the right to access information are considered within the scope of freedom of expression and in which freedom of expression imposes an obligation on public authorities to provide information.

In determining whether there had been an interference with a right, the Court outlined four criteria to recognize the significance of the right to access information in the exercise of freedom of expression in line with the criteria set out in the case law of the ECtHR. First, according to the purpose of the information request criterion, access to information should be a prerequisite for the forming and disclosure of thoughts. Second, based on the nature of the requested information criterion, the information sought should relate to matters of public interest. Third, in terms of the identity of the person making the request criterion, the individual should play a unique role in creating spheres of public debate and conveying opinions to the public. Although the role is often attributed to media organizations and journalists, it is not limited exclusively to the press and so this criterion could also apply to academics, scientists, and civil society organizations playing a significant role in the discussion of public matters as discussed in the Turkish case of Zübeyde Füsun Üstel and others (Academics for Peace). Fourth, based on the availability of the requested information criterion, the denial of access to readily available and usable information held by public authorities can constitute an interference with freedom of expression.

The Court applied these criteria to the present case. It recognized Akdeniz’s role as an academic who wrote articles and reports on the restrictions of freedom of expression on the internet, as well as his role in civil society organizations working actively against internet censorship through social media and the press. It held that the statistics on access blocking fell within Akdeniz’s area of interest.

The Court noted that access blocking to internet content affects the right to receive information and opinions, as well as the disclosure and dissemination of information. It stated that “it is indisputable that the request for access to statistical data on websites blocked in Turkey is in the public interest for monitoring whether restrictions on freedom of expression on the Internet are excessively eliminating the use of this freedom, and whether arbitrary and disproportionate interventions are being made. The informative value of such data is also unquestionably high.” [para. 59]

The Court found that Akdeniz acted to raise public awareness through analysis and reports on violations of freedom of expression by working with statistics related to the access blocking to websites, and his purpose in requesting information could be considered to make restrictions on access to websites a fundamental part of public discourse. It held that “it has been concluded that for [Akdeniz], the information requested is a prerequisite for the purpose of expressing thoughts and is necessary information to be accessed for use in the process of forming those thoughts.” [para. 63]

In the examination of whether the requested information was readily available and usable, the Court made a distinction between the types of requests. In relation to the access blocking decisions issued by administrative and judicial authorities under Article 8 of Law No. 5651, which were sent to the BTK for implementation, it found that these decisions were within the possession of the BTK. Although BTK rejected the request for information regarding the access blocking decisions issued under Article 8 of Law No. 5651 on the grounds that it required a special and separate effort, the Court held that the proportional distribution of all blocking measures monthly, categorized by types of crimes, continued to be published after the date when regular monthly publication of the requested statistics ceased. In order to calculate this proportional distribution, the Court found that the statistics requested by Akdeniz should be available at the BTK and that the information regarding these statistics was readily available and usable.

Accordingly, the Court held that the rejection of Akdeniz’s request for information on the access blocking decisions issued under Article 8 of Law No. 5651 interfered with freedom of expression.

Regarding the request pertaining to access blocking decisions issued by judicial authorities outside the scope of Article 8 of Law No. 5651, the Court noted that the authority responsible for implementing these decisions during the relevant period was the BTK, and these decisions were sent to it. However, it concluded that Akdeniz’s request focused on the legal grounds of these decisions and their classification based on the types of issuing authorities, which did require a “separate and specific effort”. The Court held that this information request did not satisfy the criterion of readily available and usable information, and that therefore, the allegation of a violation of freedom of expression in terms of this request was inadmissible.

In examining if the interference was lawful and therefore whether it constituted a violation of the right, the Court stressed that the matter to be resolved in the case was not limited to the specific information request but extended to the broader issue of access blocking practices. It emphasized that Akdeniz’s role to inform the public was continuous, and therefore, the need for access to information was not limited to the period subject to the application but was an ongoing need. The Court stated that it would assess whether freedom of expression required Akdeniz’s continuous needs to be met and whether the state had an obligation to provide statistics on access blocking.

The Court noted the abstract and unsubstantiated nature of the justifications provided by the BTK and judicial authorities for rejecting the information request, highlighting a lack of connection between the concrete case and the given justifications. It stated that the reasons for refusal —citing the Right to Information Law in an abstract sense—, could not be considered as a legal basis for an interference with the right to information. The Court held that the refusal, as the interference with the right, lacked a demonstrated legitimate purpose, and so concluded that the interference with Akdeniz’s freedom of expression was not in line with the requirements of a democratic society.

Accordingly, the Court held that Akdeniz’s freedom of expression was violated.

In respect of Akdeniz’s complaint of a violation of the right to trial within a reasonable time due to prolonged legal proceedings, the Court found unanimously that the complaint was inadmissible since the application to the Human Rights Compensation Commission of the Ministry of Justice, which was foreseen for pending individual applications before the Constitutional Court when proceedings are not concluded within a reasonable time, was not exhausted.

The Constitutional Court sent a copy of the judgment to the Ankara 2^nd Administrative Court to eliminate the consequences of the violation and conduct a retrial.

---