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The Turkish Constitutional Court (“Constitutional Court“) evaluated Law No. 5651 on the Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts (“Internet Law“) in its newly published pilot decision (“Decision“) on freedom of expression and the press. The Constitutional Court pointed out the relationship between freedom of expression and the press and Article 9 of the Internet Law and made recommendations to the Turkish Grand National Assembly for the reformulation of the relevant article.
New development
The Constitutional Court evaluated several applications (“Applications“) in its new Decision, No. 2018/14884 and dated 27 October 2021, and decided that freedom of expression and the press, and the right to a fair trial were violated. The Decision was published in the Official Gazette on 7 January 2022 and is available online in Turkish here.
Background
The Constitutional Court determined that the Applications were due to a systematic problem and examined similar applications together using the pilot decision procedure. The Applications are related to access blocking decisions of news on nationally broadcast news websites. The news concern politicians, public officials and institutions well known to the public. The individuals referred to in the news claimed that their personal rights were violated due to the statements in the news, and the judgeships of peace ordered access blocking decisions to the URLs containing the news pursuant to Article 9 of the Internet Law, without providing sufficient legal grounds. The news websites objected to the decision of the judgeships of peace on access blocking and the authorized judgeships of peace upheld the decisions. The news websites applied to the Constitutional Court.
The evaluations of the Constitutional Court
The Constitutional Court evaluated the allegations within the scope of freedom of expression and pointed out that the restrictions on rights and freedoms must (i) have a lawful basis, (ii) rely on legitimate causes under the Constitution and (iii) comply with the needs of a democratic society and the principle of proportionality according to Article 13 of the Constitution.
In terms of the evaluations on the lawful basis, the Constitutional Court explained that there is an uncertainty on the severity of the tortious act subject to Article 9 and the nature of the measure taken (intermediary mechanism/protection measure/autonomous way that constitutes a definitive provision) in the application of Article 9 of the Internet Law.
The Constitutional Court reiterated its principle that access-blocking measures should only be resorted to in cases of prima facie violations. Accordingly, the Constitutional Court stated once again that the courts of first instance must evaluate whether the expressions used in the content contribute to a public discussion, the value of the expressions, the person they are addressed to and the effects that they have on these persons.
In its assessment, the Constitutional Court emphasized that none of the decisions of the judgeships of peace provided evaluations on the above-mentioned points nor included an assessment of whether there was a prima facie violation. The Constitutional Court stated that the same issue also applies to judgeships authorized to review the objections.
Evaluations on Article 9 of the Internet Law
The Constitutional Court concluded that Article 9 of the Internet Law must include certain guarantees so that the interventions to the freedom of expression and the press are not disproportionate, and it considered that since the judgeships of peace need to make a decision within 24 hours, this prevents the person or body publishing the internet content from being involved in the process. Therefore, the judgeships of peace authorized to review the objections must observe the balance of interests and evaluate the essence of the allegations to compensate the lack of legal certainty in the later stages of the proceedings.
The Constitutional Court assessed that Article 9 of the Internet Law should provide guidance to the criminal judgeships of peace and the necessary tools, and stipulate a gradual intervention procedure.
The Constitutional Court further stated that the Turkish Grand National Assembly should reformulate the existing provision and make the necessary amendments in order to prevent similar violations. According to the Constitutional Court, the new provision should (i) clearly regulate the scope and nature of Article 9, (ii) provide adversarial proceedings, (iii) stipulate appeal procedures, and (iv) provide guidance for the judgeships of peace.
Conclusion
In its latest pilot Decision, the Constitutional Court drew attention to the problems in the implementation of the access blocking measures stipulated under the Internet Law and made important evaluations regarding the interferences to the freedom of expression and the press. All relevant persons should carefully review the assessments of the Constitutional Court and follow the developments in this regard.
