Case Summary and Outcome

The European Court of Human Rights found a Turkish broadcasting company’s application claiming that its right to freedom of expression was violated to be inadmissible. The radio station had received a 365-day ban on its broadcasting activities due to recurring broadcasts the State regulator believed constituted incitement to violence, terrorism, racial discrimination, or hatred. The Court agreed with the regulator’s findings and emphasized the importance of restricting such expressions to protect the founding principles of a pluralist democracy. The Court noted the role of deterrent sanctions, like the ban in the case, in response to problematic expressions.

Facts

On May 28, 1998, during a broadcast on the Turkish radio station, Medya FM Reha Radyo ve İletişim Hizmetleri A.Ş (a joint-stock radio broadcasting company) the following statements were made: “”Hey child, pick up the ball, the stones. Exhaust your anger with stones. Do you know why you should accumulate your anger? Have you seen the ruins of your village? Gather your anger in secret. Let your anger become the fist. Let the fist become the revolt. Accumulate the revolt, gather the revolt. Let the revolt become the revolution.” This led to a warning from the Turkish state regulator for radio and television, Radyo Televizyon Üst Kurulu (“RTÜK”), in terms of Article 4(a) of Law No. 3984 which requires respect of the Republic of Turkey’s territorial integrity.

On June 1, 1998, Medya FM broadcast the following statement: “You are still beautiful Kurdistan because you are the land of Şeyh Said, Saidi Nursi, and Ahmet Xani. Throughout history, the cruel ones did not let you taste happiness. You are still beautiful Kurdistan. You are beautiful with your loyal teenagers who climb the mountains and hold a Kalashnikov in their hands, with silver in their palms. Shame on the cruel ones, shame on your oppression. Those who become animals as they kill, who climb in rank, who are amazed at what they do, shame on you.”

The RTÜK suspended Medya FM’s broadcasting rights for 30 days as it found the statements violated Article 4(g) of Law No. 3984 which prohibits dissemination of incitement to violence, terrorism, racial discrimination, or hatred through broadcast. Medya FM had previously received a warning, on February 28, 1997, for a similar violation.

On July 19, 1998, Medya FM broadcast a song with the lyrics, “Hey Muslim, pull yourself together. Come on, my Muslim sister and brother, our cause awaits us. The supreme cause of Islam. This cause that will wipe away the tears of the oppressed is my right, your right, his right, the right of those who call themselves Muslims. For this cause, may thousands of lives, heads be sacrificed. This struggle is a fight of blood for blood. The oppressed will demand justice; in every tear shed, the cruel will drown.” The RTÜK again suspended the station’s broadcasting rights for 30 days for a violation of Article 4(g), and noted that it had warned the station on October 26 and November 2, 1996 for similar broadcasts.

On September 22, 1998, the RTÜK banned Medya FM from broadcasting for 180 days for broadcasting statements disrespecting the territorial integrity and national unity of the state. However, the Turkish Council of State annulled this decision, and it was never executed.

On January 6, 2000, the RTÜK suspended Medya FM again for violating Articles 4(g) and 33 of Law No. 3984 for broadcasting statements and songs on Islamic Hijab on October 27, 1999, which the RTÜK found to constitute incitement. Because of the recurrence of the station’s violations of Article 4(g), it was banned from broadcasting for 365 days. Medya FM approached the Ankara Administrative Court seeking an annulment of the decision. On June 15, 2000, the Court dismissed the application, referring to the various warnings given to Medya FM and finding that the station had violated Article 4(g). On February 5, 2002, the Council of State upheld the decision and notified Medya FM of its decision on May 30, 2002.

Medya FM submitted an application to the European Court of Human Rights (ECtHR) on August 23, 2002, arguing that its rights under Article 9 and 10 of the European Convention on Human Rights (the European Convention) had been violated.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 9 states: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Decision Overview

Section II of the European Court of Human Rights delivered a unanimous decision. The main issue before the Court was whether the ban on Medya FM’s broadcasting rights was necessary and served a pressing social need.

The Government submitted that Medya FM had not exhausted domestic remedies as this requirement extends to presenting to the domestic courts the same grievances an applicant intended to submit to the international court which Medya FM had not done. The Government argued that the restrictions on Medya FM’s freedom of expression were necessary as the impugned broadcasts were capable of inciting violence, hatred and racial discrimination which would endanger Turkey’s national unity and territorial integrity.

The Court found that Medya FM had exhausted domestic remedies. It reiterated that individuals must raise their concerns before national authorities, meeting the substance and procedural requirements of domestic law, for the grievances they later intend to bring before the Court and held that Medya FM’s domestic appeals matched the substance of freedom of expression in Article 10(1) and that the station had therefore raised the grievance it submitted to the Court to the domestic court. The Court noted that, according to Turkish law, a request for rectification of a judgment serves to reevaluate the judgment if an error has been made by the Court of Cassation or the Council of State; when parties request a revision, the court reexamines the case without introducing new elements. The Court stated that when an effective and sufficient remedy was used, the use of another remedy with the same purpose was not required, citing Patrícia Raquel Real Alves v. Portugal (2005). The Court found that the Council of State upholding the decision of the administrative court was sufficient to demonstrate that Medya FM had done all that could be reasonably expected to exhaust domestic remedies.

The Court recognized that there was an interference with Medya FM’s right to freedom of expression under Article 10, and that the interference was prescribed by law and pursued the legitimate aims of protecting national security and public safety as well as the prevention of disorder and crime. It underlined the essential role of freedom of expression in democratic societies and that Article 10 extends to offensive, shocking and disturbing information and ideas as stipulated in Handyside v. the United Kingdom (1976). The Court highlighted the prominent role of the press in a democratic society due to its function of information dissemination which fulfills the public’s right to receive information and that in democratic societies actions of the government are subject to scrutiny of the press and public opinions and that these principles are of significant importance for broadcasting as well as written press. In acknowledging that States have a narrow margin of appreciation when restricting freedom of expression of the press because of its role as a watchdog (which extends to audio-visual media), the Court accepted that the margin of appreciation widens if states analyse whether there is a need to restrict inciting speech.

The Court analyzed the terms used in Medya FM’s broadcasts and their context. It found that there was no violation by the September 22, 1998, decision as it was annulled and never executed. In respect of the 365-day ban, the Court noted the several previous warnings and underlined that it was required to analyze the previous broadcasts to assess whether the restriction was responding to a pressing social need. The Court’s analyses of the various broadcasts found the language provocative, inciting to a violent uprising and hate speech, glorification of violence or incitement of violence, and held that the restriction answered a pressing social need.

In regard to the proportionality of the sanction, the Court recognized the severity of the 365-day ban, but underlined the necessity of dissuasive sanctions in cases where expression endangers national security and the founding principles of a pluralist democracy like the expression at hand and found the sanction to be proportionate to the legitimate aims pursued.

Accordingly, the Court found the application manifestly ill-founded and declared the complaint inadmissible.