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Constitutional Court Issues Decisions on Freedom of Speech – March 2020

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Recent Development

The Constitutional Court issued three new decisions, nos. 2016/5653 (“First Application“), 2016/73997 (“Second Application“) and 2017/4786 (“Third Application“) regarding the sanctions and measures taken against an applicant’s freedom of speech, the owner of a national newspaper (“Applicant“). The decisions were published in the Official Gazette on March 11, 2020.

Background

In the First Application, the Press Advertisement Agency (tr. “BİK) imposed a one-day advertisement and announcement ban on the Applicant’s newspaper due to a column containing statements against a prosecutor. The column raised allegations that the prosecutor was involved in crimes (such as racketeering, embezzlement and illegal trading) and acts of “parallel state”, i.e. a group of people occupying bureaucratic and judicial positions that have been conspiring against the Turkish government. The BİK’s decision became final after the Applicant’s opposition was rejected. In the Second Application, the BİK imposed a three-day advertisement and announcement ban on the Applicant’s newspaper due to inappropriate content and offensive language – such as “you pimp”, “you son of a dog”, and “you bitch” – in a column. The BİK’s decision became final after the Applicant’s opposition was rejected. In the Third Application, the relevant court made a moral compensation decision against the Applicant due to the allegedly offensive statements -namely “pimp” – they published in an article, which infringed on a theater artist’s personal rights. The Applicant argued that the punishments violated their freedom of speech and press guaranteed by the Constitution of Turkey.

What Do the Decisions Say?

The Constitutional Court stated in all of the Applications that the restrictions of rights and freedoms guaranteed by the Constitution of Turkey must rely on legitimate causes under the Constitution and comply with the needs of a democratic society and the principle of proportionality. In other words, any action taken against the freedom of speech must fulfill pressing social needs and be proportionate.

The Constitutional Court also stated in the First and Third Applications that, when taking actions against the freedom of speech for the protection of the dignity and reputation of an individual, the public authorities must make their assessments based on certain criteria, such as whether (i) there is a public interest in the relevant publication; (ii) the publication contributes to the general interests of society; (iii) the statements in the publication have a factual basis; and (iv) the publication’s impact on the dignity and reputation of the individual compared to the measures against the freedom of speech. In this regard, the public authorities must demonstrate sufficient grounds that the relevant action against the freedom of speech corresponds to a pressing social need.

The Constitutional Court touched upon the economic impact of advertisement and announcement bans, stating that such sanctions deprive publishers from significant financial gain.

In light of the above, the Constitutional Court stated that in the First Application, the announcement and advertisement ban due to a newspaper publication does not fulfill a pressing social need, and that the BİK failed to provide sufficient grounds in this regard. Accordingly, the Constitutional Court ruled that the Applicant’s freedom of speech and press were violated. The Constitutional Court’s decision on the First Application is available here (in Turkish).

In the Second Application, the Constitutional Court assessed that the statements in the relevant publication contained abusive language -namely” “you pimp”, “you son of a dog”, “you bitch”- that could negatively affect the youth, and that the relevant announcement and advertisement ban fulfilled a pressing social need. Accordingly, the Constitutional Court stated that the BİK’s action did not go against the requirements of democratic order of society, and ruled that the Applicant’s freedom of speech and press were not violated. The Constitutional Court’s decision on the Second Application is available here (in Turkish).

In the Third Application, a theater artist used the word “pimp” during a television program and emphasized another meaning of the word in a foreign language, causing debates among journalists and citizens. The Applicant used the same word against the artist in a publication in its newspaper, which resulted in the theater artist filing an infringement claim. In light of this, the Constitutional Court noted that these publications must be evaluated in integrity, in consideration of the particularities surrounding the case. The Constitutional Court also stated that the statements against the theater artist amounts to “belittlement”, and that this method of social criticism is important for debates on public issues. In this regard, the Constitutional Court opined that the court of first instance failed to demonstrate that the punishment against the Applicant does not correspond to a social need, ruling that the Applicant’s freedom of speech and the press were violated. The Constitutional Court’s decision on the Third Application is available here (in Turkish).

Conclusion
In assessing whether the sanctions and measures taken against the freedom of speech fulfills a pressing social need, the Constitutional Court stated that these actions must be adequate in accomplishing their purposes, taken as a last resort, and represent the mildest measure applicable. Accordingly, the public authorities must provide relevant and sufficient grounds to demonstrate that any measure or sanction they take against the freedom of speech and the press fulfills a pressing social need.