Individual Application 3/20
Press Release concerning the Judgment Finding a Violation of the Freedom of Expression due to Blocking of Access to Wikipedia
On 26 December 2019, the Plenary of the Constitutional Court found a violation of the freedom of expression safeguarded by Article 26 of the Constitution in the individual application lodged by Wikimedia Foundation Inc. and Others (no. 2017/22355).
The Prime Ministry Directorate General for Security Affairs requested the Information and Communication Technologies Authority (“the Authority”) to remove two contents available on the website, namely Wikipedia, which were considered to fall within the scope of cases where delay is deemed prejudicial; to block access to these contents, if not removed; and to block access to the entire website, if the latter option was not also available.
The Authority, approving the said request, decided to block access to the entire website as the contents were not removed and it was not technically possible to block URL-based (content) access. The magistrate judge approved the decision issued by the Authority and dismissed the subsequent challenges in this regard. Thereupon, Wikimedia Foundation Inc., owner of the relevant website, and some of the users lodged an individual application. The applicant Wikimedia Foundation Inc. claimed that the voluntary Wikipedia editors made extensive changes on the impugned texts and thus the order for the blocking of access was no longer justified.
The Applicants’ Allegations
The applicants maintained that there had been a breach of the freedom of expression, stating that blocking of access to the entire website had constituted an interference not complying with the requirements of the democratic order of the society.
The Court’s Assessment
It should be demonstrated with relevant and sufficient grounds that the interference through the blocking of access to Wikipedia, which is considered to be an online encyclopaedia and provides a considerable amount of information in every field, has been necessary in a democratic society in order to ensure that the freedom to impart and receive information is not infringed.
In the present case, access to Wikipedia in its entirety was blocked due to the contents available on two URL addresses. In both contents, Turkey was described as one of the major external actors of the civil war in Syria. It was also claimed therein that Turkey supported the opposition forces in Syria, including terrorist organizations, against the current regime.
Given the texts made available via URL addresses, it appears that the allegations specified therein are mainly based on the news in national and international press. In spite of the blocking of Wikipedia in order to denial of access to the impugned contents, almost all of the resources referenced by the contents are still available on the internet.
It should be primarily noted that the order, issued under Article 8/A of Law no. 5651, which allows for removing, and/or blocking of access to, a certain online content is an exceptional means to be applied only in case of urgent necessity. Access to Wikipedia has been blocked by resorting to this exceptional means; however, neither the administrative authorities nor the inferior courts considered the issues to be taken into account in cases of the interferences under the relevant provision of the above-cited Law. The relevant authorities also failed to prove the causal link between the impugned contents and the reason underlying the impugned restriction as well as to demonstrate the existence of any case where delay is deemed prejudicial.
The law-maker cannot be expected to define, in every detail, the content and scope of statutory phrases, namely “maintaining national security and public order and prevention of offences”, which point to unforeseeable circumstances that cannot be formulated, by their very nature, in a comprehensive and concrete fashion. In this respect, interpretation of the above-cited phrases in a broader sense that would lead to arbitrary practices may be in breach of the freedom of expression. In the present case, the inferior courts failed to demonstrate any concrete grounds so as to justify the interference with the impugned contents on the ground of “maintaining national security and public order”. Besides, the challenge against the order for the blocking of access to the website was dismissed on the ground that the impugned contents “tarnished the State’s reputation”, in the absence of reasonable explanation as to why the contents were considered within this scope. The broad interpretation of the grounds for interference prescribed by law without establishing concrete links, which would lead to an impression of arbitrariness, leaves the individuals in a state of uncertainty and makes the relevant provision unforeseeable. The deterring effect caused thereby exerts an extensive and severe pressure not only on the applicants but also on large masses wishing to exercise their freedom of expression.
Wikipedia declares that it may contain subjective information and that as everyone may put an entry on the platform, it may be even subject to malicious attempts. Thereby, it explicitly makes a warning to the effect that information provided by its contributors may not refer to undisputed or true facts. Wikipedia also states that the issues it has made available may become an objective content only through long-standing discussions and in time, which may take months and even years.
In the present case, following the order for the blocking of access to the website, the volunteer and impartial editors on Wikipedia have made comprehensive changes in the impugned texts, tried to reformulate their contents in a more objective and careful manner as well as removed certain contents -which were found neither reliable nor verifiable- and the resources referenced by these contents. Thereby, a significant part of the allegations that Turkey had been providing support to radical formations has been also removed.
The blocking of access to Wikipedia in Turkey has constituted an interference not only with the freedom to disseminate information and thoughts enjoyed by the applicant in its capacity as the content provider but also with the Turkish users’ right to receive information and thoughts. Besides, the blocking of access has precluded discussion and consideration of the impugned contents by the Wikipedia users in Turkey, and also the active Wikipedia editors have been denied the opportunity to make adjustments and changes in, and to make contributions to, the contents.
Regard being had to all these considerations, it has been concluded that the inferior courts failed to provide relevant and sufficient grounds to demonstrate that the impugned restriction in the form of blocking access was justified by a pressing need.
In the current situation, the measure of blocking access has become permanent. Such restrictions imposed for an indefinite period of time –also in consideration of the blanket ban on access to the entire website– would clearly constitute a disproportionate interference with the freedom of expression. It has been concluded that the impugned interference with the freedom of expression was not compatible with the requirements of a democratic society.
Consequently, the Constitutional Court has found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.