Individual Application

The Facts

The Radio and Television High Council (RTÜK) initiated an inspection due to a program broadcasted on the applicant’s television channel with Meltem TV logo and drafted a report as a result of this inspection. In line with the said report, the applicant was issued a warning and sentenced to an administrative fine. The applicant brought an action for the annulment of the administrative act, but the administrative court dismissed the case. Having examined the applicant’s appeal request, the Council of State upheld the decision.

The Applicant’s Allegations

The applicant alleged that the freedom of expression had been violated due to the imposition of a warning sanction and an administrative fine on his television channel respectively for inciting individuals to adopt attitudes endangering general health and amounting to covert commercial communication.

The Court’s Assessment

In the present case, RTÜK issued a warning for the applicant due to Dr. M.E.’s various statements in relation to the treatment of diseases with plant-based supplement products. According to the RTÜK, the statements of the doctor targeting science, medicine and medical professions are of nature undermining public trust in doctors and hospitals. These statements also have the potential effects of alienating people from real treatment methods and negatively impacting general health. Additionally, the RTÜK considered the customer service number provided for questions below the screen as covert commercial communication although the name of the product was not disclosed, and imposed an administrative fine on the applicant in addition to issuing a warning.

In his statements, the doctor in the program associated the doctors advising generally-acknowledged treatment methods with the mentality fought against in Çanakkale province and used a narrative depicting the doctors as enemies. The statements in the program had the capacity to mislead the audience with respect to health matters, were far from being objective, as well as were populist, polarizing, and rude that should have been avoided notably when public health matters are at stake. Therefore, it is hardly possible to indicate that such a narrative is just conveyance of a scientific and objective information and intended to contribute to a dispute in the medical field. In light of these assessments, it cannot be considered that the sanction imposed on the applicant for such a broadcast by the competent authorities corresponded to a pressing social need and compatible with the requirements of a democratic society. Furthermore, a warning, a relatively lenient criminal penalty, was issued to the applicant for inciting the acts endangering the general health. Accordingly, it has been concluded in this respect that the impugned sanction was proportionate.

In relation to the administrative fine imposed on the applicant due to covert commercial communication, the doctor discussed the matter of treating diseases with plant-based products with the participation of the guests in the studio and received phone calls from time to time.  The callers attending the program by phone indicated that they could not find a medical remedy for their diseases, could cure their diseases and had been living a healthier life thanks to the treatment methods of the doctor.  In the said program, telephone numbers were also provided below the screen for customer service. The Court previously examined and ruled on a case where the communication numbers had been provided in a television program on health (İlker Erdoğan no: 2013/316, 20 April 2016). There is no ground which would require the Court to depart from this case law in the present case. Accordingly, it was neither arbitrary nor unsubstantiated for the instance court to reach the conclusion that there had been an advertisement in the said program.

Consequently, the Court found no violation of the freedom of expression.