Content Regulation / Censorship
Association for Freedom of Thought and Expression (AFTE) v. Mohamed Hamid Salem
Closed Expands Expression
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On March 27, 2014, the Turkish Presidency of Telecommunication and Communication issued a ban on YouTube.com after the recordings of discussions between government officials had been posted on the website. On May 29, 2014, the Constitutional Court of Turkey found that the ban was unconstitutional and violated the freedom of expression.
March 27, 2014, the Turkish Presidency of Telecommunication and Communication (“TIB”) ordered a ban that would restrict access to YouTube.com. The restriction was pursuant to Turkey’s Internet Law (Law No. 5651), which grants TIB the power to monitor internet contents and execute the blockage of websites deemed to pose danger to the national security or to incite violence.
The rationale behind blocking YouTube.com was that because certain recordings had been leaked on the website, it was important for national security interests that access to this information be restricted.
Youtube Corporation submitted its complaint to the Constitutional Court of Turkey upon TIB’s failure to lift the ban pursuant to an order issued by the Criminal Court of Peace in Ankara.
The main issue before the Constitutional Court of Turkey was whether ban on Youtube.com was consistent with Article 26 of the Constitution. Under this Article, “Everyone has 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.” However, as the Article was amended in 2001, the right to impart information can be restricted for the purposes of national security, public order, and public safety.
The Court first reviewed the decision of the Criminal Court of Peace, which found that the blockage of the entire website was unconstitutional and disproportionate to the alleged threats resulting from the leaked information.
In the Court’s opinion, a lawful restriction on freedom of expression, including a ban on access to online information, must contain sufficient legal specificity and predictability. As to the case in hand, the Court found that Article 8(b) of the Internet Law did not contain specific legal grounds for TIB to block the entire youtube.com.
Accordingly, the Court concluded that the blockage of access violated the freedom of expression guaranteed under Article 26 of the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the freedom of expression. In particular, this decision also acknowledges the important role of social media outlets, such as YouTube.com, in promoting democratic values.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
This case references the case law of the European Court of Human Rights as well as the European Convention on Human Rights.
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.”
As Turkey is trying to enter the European Union, banning Twitter and YouTube wasn’t a good choice. Though Turkey has unbanned the sites, it still has a long way to go if it wants to be let in the Union. Turkey is still taking government steps to consolidate power ( purging the police force and judiciary and approving a law that gives the government greater control over the courts) and this makes a mockery of democracy.
Case significance refers to how influential the case is and how its significance changes over time.
Turkey’s Constitutional Court 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.
Let us know if you notice errors or if the case analysis needs revision.