For further information,
please contact:

Senior Associate

Legal Alerts
11/09/2021 https://www.esin.av.tr/wp-content/themes/esin/images/esin.jpg

Constitutional Court’s Long-Awaited Wikipedia Decision Published

Legal Alerts
IT & Communications
General

Recent Development

The Constitutional Court’s (“Court“) decision dated December 26, 2019 with No. 2017/22355 (“Decision“) on Wikipedia was published in the Official Gazette on January 15, 2020. The Constitutional Court ruled that the access blocking decision regarding Wikipedia violated the applicants’ freedom of speech.

Background

Two articles titled “State Sponsored Terrorism” and “Foreign Involvement in Syrian Civil War” on Wikipedia  that contain statements against Turkey were regarded as urgent situations in terms of the “protection of individuals’ right to life and property, national security and protection of public order and the prevention of crime” pursuant to Article 8/A of the Law No. 5651 on the Regulation of Publications on the Internet and Prevention of Crimes Committed Through Such Publications (“Law“). Instead of banning of merely the relevant content, access to entire website was banned. The owner of Wikipedia (“First Applicant“) and, as Wikipedia users, a civil society organization that defends the freedom of speech and right to access to information and opinions (“Second Applicant“) and two academicians (“Third and Fourth Applicants“) claimed that this access blocking measure violates the freedom of speech guaranteed by the Constitution of Republic of Turkey (“Constitution“).

What Does the Decision Say?

Assessment on Admissibility

In its assessment on admissibility, the Court touched upon the nature of the aggrieved party status and stated that in order for the applicant to be regarded as the aggrieved party, the relevant measure must directly affect a current and personal right of such party. The Court expressed that the Second Applicant’s application only contains general statements on the violation of Wikipedia users’ freedom of speech and does not provide satisfactory evidence on how the access blocking decision directly affects their own personal rights. Accordingly, the Court found the Second Applicant’s application inadmissible due to lack of personal jurisdiction. On the other hand, in consideration of Wikipedia’s functionality, number of users, recognition both on national and international platforms and lack of similar alternatives, the Court accepted the other applicants’ status as aggrieved parties as they are deprived of a significant source of information. In this respect, the Court found the other applicants’ claim about the violation of their freedom of speech admissible.

Assessment on Merits

The Court stated that the Information and Communication Technologies Authority (“ICTA“) must render an access blocking decision pursuant to Article 8/A of the Law in consideration of certain criteria such as (i) the existence of an urgent situation requiring the ICTA to take a measure; (ii) a concrete link between such situation and the grounds for the measure, i.e. the protection of individuals’ right to life and property, protection of national security and public order, and the prevention of crime; and (iii) maintaining the balance between freedom of speech and the requirements of democratic public order. Accordingly, the Court stressed that the Court of Peace, which upheld the access blocking decision, failed to make a detailed assessment of the above criteria; broadly interpreted the “national security and protection of public order” ground; and failed to present a concrete link between the content on Wikipedia and the ground for an access blocking measure. Therefore, the Court of Peace was unable to demonstrate that there was an urgent situation requiring the access blocking measure. The Court also emphasized Wikipedia’s nature as a living encyclopedia, stating that Wikipedia may contain subjective information and for this reason, Wikipedia explicitly informs its users that certain content on the website may not be completely accurate as it may take years for articles to become objective. Accordingly, the Court underlined that the Court of Peace did not take into consideration Wikipedia’s specific nature when upholding the access blocking decision.

In the Decision, the Court also criticized that the authorities and the Court of Peace did not take into account the fact that Wikipedia made changes to the relevant content and proceeded with implementing the access blocking decision on the entire website, causing Wikipedia users to be deprived of other content on the platform.

The Court also noted that access blocking decisions constitute a violation of fundamental rights and freedoms, and for this reason, the courts must provide explicit and detailed explanations on the rationale of taking these measures. In particular, the courts must also demonstrate the necessity of such measures if it bans the access to an entire website instead of specific content.

The Court further explained that blocking access to Wikipedia does not only limit the First Applicant’s right to access information and opinions, but also the rights of all Wikipedia users. The Court stated that the access blocking measure was permanent and it disproportionally interferes with individuals’ freedom of speech.

In light of the above, the Court ruled that this access blocking decision does not comply with the requirements of democratic order and therefore violates the First, Third and Fourth Applicants’ freedom of speech guaranteed by Article 26 of the Constitution. The Court sent its decision to the relevant Court of Peace for re-trial.

The Court’s decision is available online here (in Turkish).

Conclusion

The Constitutional Court maintained its stance on access blocking decisions regarding two different online platforms (micro-blogging and video sharing platforms). Even in urgent situations such as national security and the protection of public order, courts and authorities must preserve the balance between freedom of speech and the requirements of democratic order, and they must take measures proportional to the particularities of the case at hand. The Constitutional Court opined that there should be a concrete link between the grounds and the content for the relevant measure, and that the content must be of such considerable impact that would require the restriction of individuals’ right to information and opinions through access blocking.