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Legal Alerts

06/11/2020

Constitutional Court Issues Decision on Freedom of Speech

Legal Alerts
IT & Communications
General

Recent Development

The Constitutional Court (“Court”) issued its decision no. 2017/35947 (“Application”) regarding the sanctions and measures taken against the freedom of expression and dissemination of thought and freedom of the press of an applicant, the owner of a website (“Applicant”). The decision was published in the Official Gazette on November 4, 2020.

Background

The Applicant owns a website that publishes the agendas of labor movements and includes news, articles and translated documents about this topic. The website was first subjected to a ban on July 25, 2015 due to its activities. The ban was based on 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“). Because of the website’s activities, it was considered urgent to block the website in order to ensure the “protection of individuals’ right to life and property, national security and protection of public order and the prevention of crime” or “within the scope of the situation where a delay is inconvenient due to content that praises terrorism, encourages violence, crime and threatens public order and national security.” Following the  July 25, 2015 ban and until the end of 2017, the Applicant created and published 61 iterations of the same website, all of which were blocked.

The Applicant objected to the Court of Peace’s decision, but his objections were dismissed.

What Does the Decision Say?

The Applicant’s complaint about the approval of the access blocking decisions were evaluated within the scope of the freedom of expression and dissemination of thought and freedom of the press.

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 the party. Thus, the Court found the Applicants’ claim about the violation of his freedom of speech, the necessity of verdict justification, and the right to request prompt access to the competent authorities as admissible.

In its assessment of merits, the Court stated that in order for an access blocking decision pursuant to Article 8/A of the Law to be valid, it must meet certain criteria: (i) the existence of an urgent situation requiring the relevant authority to take a measure; (ii) a concrete link between the 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) the goal of maintaining the balance between freedom of speech and the requirements of democratic public order.

In the decision, the Court also stated that the link between the contents of the website and the reason for the access blocking was not sufficiently analyzed to adjudicate the access blocking measure, and that the website did not create an urgent situation that would necessitate the measure.

The Court also noted that since access to the website in question was blocked for a general and single reason, the block does not specify which parts of the website’s content violates the protection of individuals’ right to life and property. The Court further explained that there is no explanation for the reasons to access blocking all of the Applicant’s 61 websites pursuant to Article 8/A of the Law.

Thus, the Court ruled that these access blocking decisions do not comply with the requirements of democratic order and therefore violate the Applicants’ freedom of expression and dissemination of thought and freedom of the press.

Conclusion

In order to block access to a website, the website must cause an urgent situation that needs remedy; a concrete link between the situation and the grounds for the measure must exist; and the measure must strike a balance between the freedom of expression and the democratic public order. Furthermore, an access blocking decision regarding any content must provide a detailed cause and link between the contents and the necessity of the decision. In addition, pursuant to the verdict at hand, the Court required an explanation for the reason to block an entire website rather than specific content on the website. According to the Court, access blocking measures done in contrary to these principles will not comply with the requirements of democratic order.