Press Release No: Individual Application 60/23
Press Release concerning the Judgment Finding Violations of the Freedom of Expression and the Press due to a Decision to Block Access to a Website
On 14 September 2023, the Plenary of the Constitutional Court found violations of the freedom of expression and the press, respectively safeguarded by Articles 26 and 28 of the Constitution, in the individual application lodged by Artı Media Gmbh (no. 2019/40078).
The applicant is the owner of the website titled Artı Gerçek, where news articles and opinion columns on Türkiye and world affairs are published. The Security General Directorate, affiliated with the Ministry of Interior, filed a request with the Information Technologies and Communication Authority (“BTK”) requesting to block access to the above-mentioned website due to a news article published on 15 October 2019. Having assessed that the request complied with the procedure and the law, BTK issued an interim measure of an administrative nature to block access pursuant to Article 8 § A of Law no. 5651 on Regulating Publications on the Internet and Combating Crimes Committed through Such Publications and submitted this decision to the approval of the Magistrate Judge. The decision rendered by the Magistrate Judge to block the access was upheld while the applicant’s appeal against this decision was dismissed.
The Applicant’s Allegations
The applicant claimed that there had been a violation of freedom of expression and the press due to the court’s decision to block access to a news article published on the website.
The Court’s Assessment
In its judgment in the case of Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others ([Plenary], no. 2018/14884, 27 October 2021), the Constitutional Court examined in detail the procedure for blocking access under Law no. 5651. In the relevant decision, the Court assessed whether the impugned interference under Article 9 of Law no. 5651, based on the need to protect personal rights in a prompt and effective manner, satisfied the lawfulness criteria and complied with the requirements of a democratic society, as well as the proportionality principle. As a result, the Court concluded that the violation had stemmed directly from the law and ruled that the judgment be communicated to the legislative branch to redress the structural problem.
Furthermore, in its judgment on the individual application of Birgün İletişim ve Yayıncılık Ticaret A.Ş. (no. 2015/18936), the Constitutional Court held that the exceptional procedure under Article 8 § A of Law no. 5651 can be implemented without the need of any further examination in cases that it was perceivable prima facie that publications available on the internet posed a threat to the democratic order such as the ones praising violence or provoking and inciting people to adopt the methods employed by a terrorist organisation, to resort to violence, to hatred, revenge, or armed resistance.
On the other hand, the Constitutional Court underlined that such reasoning cannot be interpreted as a blanket ban to restrict all types of content related to terrorism. Additionally, the Constitutional Court further emphasized that within the framework of the protection of the freedoms, the public organs must act diligently in their assessments, notably of political opinions, in order to prevent arbitrary use of the term of terrorism. In this regard, the Court has also recurrently indicated that the sound exchange of views and information on matters relating to terrorism can only be achieved through the full protection of freedom of expression and the press. Nevertheless, in its assessment of the impugned interferences within the scope of Article 8 § A of Law no. 5651, as in the present case, the Constitutional Court has found that the public organs failed to demonstrate that the unlawfulness and the interference with public interests had been prima facie apparent and prompt redress of the grievances had been strictly necessary; the restriction had met a pressing social need; and therefore the impugned interference had fulfilled the requirements of democratic social order and relied on reasonable grounds. This finding indicates that the administrative and judicial authorities do not differ in their assessments of the cases related to the interferences of blocking access to the Internet and that there is an erroneous established practice in this matter.
Accordingly, in the present case, the Court has assessed that there were no grounds in the present case to depart from the assessments and the conclusion reached in its Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others judgment. The Constitutional Court has concluded that the freedom of expression and the press had been violated and the impugned violations stemmed directly from the law, on the grounds that, as with Article 9 of Law no. 5651, Article 8 § A of the same law also did not provide fundamental safeguards capable of preventing arbitrary acts of public authorities by narrowing their margin of appreciation and of striking a fair balance between the freedom of expression and the legitimate interest in protecting the democratic society against the acts of terrorist organisations.
Consequently, the Court has found violations of the freedom of expression and the press.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.