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29/09/2021 https://www.esin.av.tr/wp-content/themes/esin/images/esin.jpg

Constitutional Court Issues New Decision on the Freedom of Speech and Press

Legal Alerts
Covid-19
IT & Communications
General

Recent Development

The Constitutional Court issued its decision no. 2015/16368 regarding a decision to block access to a news website. The decision was published in the Official Gazette on May 2, 2020. The court ruled that the access blocking decision for the entire website violated the freedom of speech and the press. The Constitutional Court’s decision is available here (in Turkish).

Background

The relevant website describes itself as a news website that offers space for discussions and sets an agenda for the public about nationwide social movements from workers’ perspective. The application stated that the website contains numerous copyrighted articles and translations, and that many academics reference the site. The website, along with 118 other websites, were blocked at the Prime Ministry’s request and Telecommunication Communication Presidency’s[1] (tr. TİB) decision, on the grounds that the relevant content “violates the right to life and the safety of persons’ lives and properties”. The Ministry of Justice opined that the relevant website “promotes terrorism, incites violence and crime, and threatens public order and national security”. The relevant court of peace approved the TİB’s decision and rejected the applicant’s objection to the approval decision. The applicant, who is the representative of the website, argued that the decisions did not explain the rationale of the access blocking measure, that the measure is not proportional to the alleged offense, and that it violated their freedom of speech and the press guaranteed by the Turkish Constitution.

What Does the Decision Say?

The Constitutional Court stated that in order to issue such an extensive access blocking decision, the violation of law or public interests must be apparent at first glance and that the damage arising from the violation must be compensated immediately. The Constitutional Court noted that the access blocking decision in the case at hand is based on one general ground and does not explain which specific part of the content violates the right to life or the safety of persons’ lives and properties. In other words, the  access blocking measures are unclear as to which part of the content and how the content constitutes a violation. In this respect, the Constitutional Court assessed that the administrative and judicial authorities failed to establish a link between the content and the grounds for access blocking.

The Constitutional Court also remarked that instead of specific content on the website being blocked, the entire website is blocked, and reiterated the procedure to block access to the entirety of a website under Law No. 5651. On this basis, the Constitutional Court stated that the administrative and/or judicial authorities did not provide grounds for blocking access to the entire website. The Constitutional Court evaluated that the access blocking decision is disproportional in terms of freedom of speech and the press.

In light of the above assessments, the Constitutional Court ruled that the access blocking decision for the entire website violated the freedom of speech and the press, stating that the administrative and/or judicial authorities failed to demonstrate that the access blocking measure corresponds to a mandatory social need, complies with the needs of a democratic society, and is proportional.

Conclusion

In assessing the sanctions taken against an applicant’s freedom of speech through an access blocking measure, the Constitutional Court noted that the administrative and judicial authorities must sufficiently establish the link between the rationale of the measure and the relevant content. Considering the Constitutional Court’s decision for the case at hand, access blocking decisions must be justified with sufficient grounds in terms of the proportionality principle, and the access blocking measure must correspond to a mandatory social need. Although the TİB was closed in 2016, the consequences of its decisions remained in effect until today. In that respect, it is of utmost importance for judicial and administrative authorities to take into consideration the Constitutional Court’s decisions when implementing access blocking measures, as the consequences of these measures may harm the freedom of speech and press for years to come.

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[1] The TİB was closed in 2016 and its powers and responsibilities were transferred to the Information and Communication Technologies Authority (tr. BTK).