Güner Law Office | View firm profile
The decision of the Constitutional Court numbered 2018/14884 and dated 27 October 2021 rendered as per the individual application to the Constitutional Court by “Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others” (“Decision”) was published in the Official Gazette dated 7 January 2022 and numbered 31712. The Constitutional Court decided that the decision to block access to various news published on internet news sites has violated the freedoms of expression and press.
In the Decision, the Constitutional Court focuses on whether the decision to block access to news published on various internet news sites violates the freedom of expression and press. The Constitutional Court examined multiple applications related to the subject by combining them with the application file numbered 2018/14884. The Decision is also important in terms of its pilot judgment nature in the sense that the applications stem from a structural problem within the framework of Article 75 of the Constitutional Court’s Rules of Procedure. Accordingly, the examination of individual applications to be made on the same subject has been postponed for 1 (one) year.
SUMMARY OF FACTS
The Criminal Judgeships of Peace decided to block access to the news made by various internet news sites on the grounds that these caused the violation of the personal rights of the people covered in the news based on Article 9 of the Law No. 5651 on the Regulation of Broadcasts on the Internet and Combating Crimes Committed Through These Broadcasts (“Law“); objections were filed against these decisions, but such objections were rejected on the grounds that the decisions to block access were in compliance with the procedure and the law. Thereupon, the applicants filed an individual application on the grounds that their freedom of expression and press were violated.
ASSESSMENT OF THE CONSTITUIONAL COURT
Presence of the Intervention
After stating that internet journalism – as long as it fulfills the basic function of the press – should be considered within the scope of the freedom of press, the Constitutional Court stated that the internet has an important role in the development of the public’s access to news and transmission of information. After stating that all kinds of restrictions in the form of blocking access to websites or news on websites affect the freedom to receive and impart information, it was explained that the decisions to block access by the peace judges constitute an intervention.
Whether the Intervention Causes a Violation
The Constitutional Court examined whether the Law fulfills the criteria of legal security and certainty. According to the Constitutional Court, there is no statement in Article 9 of the Law that
the scope of the way of blocking access is limited to internet broadcasting that constitutes a crime. In addition, a measure/threshold has not been determined for the extent that the tort involving interference with personal rights should reach for the decision to block access. Again, the Constitutional Court explained that the method of blocking of access stipulated in the Article 9 of the Law is not an interim measure; on the contrary, it is a method that has been created independently from the existing judicial procedures in the legal system, and that requires a judgment on the merits of the dispute for the limitation of freedom of expression on the grounds that personal rights have been violated, and having its own characteristics.
Whilst supervising whether the intervention complies with the requirements of the democratic social order and its proportionality, the Constitutional Court explained that the politicians mentioned in the news that are the subject of the application are people well-known to the public, public officials and institutions; some of the news about the blocking of access decisions are about social issues, some are about the activities and statements of politicians, and some of them serving the purpose of opening to public inspection the activities of people and institutions using public power.
According to the Constitutional Court, there is no doubt that the news in question fall within the scope of the duty and responsibility of the press to report. In addition, the Constitutional Court explained that none of the decisions of the criminal judgeship of peace was issued as a result of a contested hearing and the need for an immediate elimination was not elaborated under the decisions, in which it was decided that the interference caused an unlawful violation of the honor and reputation of the complainants due to the internet broadcast. Again, it was stated by the Constitutional Court that there were no concrete findings in the decisions of the criminal judgeships of peace that the press did not comply with its duties and responsibilities, and that the truth was distorted with malicious intent. Finally, the Constitutional Court explained that as no criminal investigation or prosecution was initiated after the decision to block access to the news, the access to the news was blocked for an indefinite period; the indefinite effect of such decisions taken as a precautionary measure without relevant and sufficient justification causes the interference with the freedoms of expression and press to not be characterized as proportional.
According to the Constitutional Court, the method of preventing access stipulated in Article 9 of the Law does not contain the procedural safeguards of trial law. Upon the request of the people claiming that their personal rights have been violated by the peace judgeships and based on the documents submitted by them, it was decided to block access within 24 hours and without a hearing; no notification has been made to the news sites and/or owners that make/publish the news. A strict and effective control mechanism was not envisaged to eliminate the procedural deficiencies after the access blocking decisions. Again, Article 9 of the Law does not provide the peace judges with the tools that will enable them to make decisions in accordance with the requirements of the democratic social order and it determines the method of the blocking of access as the only means of intervention in the prevention of all kinds of attacks, regardless of the nature/size of the attack.
In light of the explanations and reasons above, the Constitutional Court declared that the applicants’ freedom of expression and press were violated; and it also unanimously decided that the right to an effective application, which is guaranteed in Article 40 of the Constitution, has been violated.
The Constitutional Court, which is of the opinion that all these problems stem from the Law itself, recommended the following:
- Making Article 9 of the Law predictable and reorganizing the scope and legal nature of the procedure for blocking access in a way that is sufficiently clear and qualified,
- Harmonization of Article 9 with the purpose of the Law and determination of a criterion/threshold regarding the extent of the weight that the tortious act should reach in cases where the procedure of blocking of access can be used,
- If it is accepted that the way of preventing access is in the nature of a measure, a contested hearing should be followed thereafter; otherwise, this method should contain the necessary procedural safeguards,
- Ensuring a reasonable balance between the means to be used and the legitimate aim sought to be achieved by introducing alternative means other than the method of preventing access to the
Consequently, the Constitutional Court concluded that Article 9 of the Law constitutes a structural problem in terms of violations of freedom of expression and press, blocking access to a content on the internet is a heavy intervention tool since it prevents access to that content indefinitely, and this way should only be used in compulsory and exceptional cases. In order not to harm the freedom of expression and press protected by the Constitution, disproportionate and arbitrary practices should be prevented, an impact assessment should be made before the decision to block access, and if a decision to block access is made, the reasons for this should be clearly stated.