Press Release No: Individual Application 4/22
Press Release concerning the Judgment Finding Violations of the Freedoms of Expression and the Press as well as of the Right to Legal Remedies due to Denial of Access to Certain Online News Articles (Pilot Judgment)
On 27 October 2021, the Plenary of the Constitutional Court found violations of the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution, as well as of the right to legal remedies safeguarded by Article 40 thereof in the individual application lodged by Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others (no. 2018/14884).
The applicants challenged the court decisions blocking access to 129 news articles published in a web-site of a nation-wide journal and other certain online news sites. Upon the rejection of their challenges by the relevant inferior courts, the applicants separately lodged individual applications with the Court.
The Applicants’ Allegations
The applicants maintained that there had been violations of the freedoms of expression and the press as well as of the right to legal remedies due to the decisions ordering denial of access to certain news articles published on online news sites.
The Court’s Assessment
1. Alleged Violations of the Freedoms of Expression and the Press
The Court joined 9 separate applications in view of the legal interrelatedness ratione materiae of the cases. All cases are related to the complaints concerning the denial of access to 129 URL addresses, which was ordered by the incumbent magistrate judges upon the request of those who had raised alleged violations of their rights to honour and dignity due to the impugned expressions in the web contents.
It is evident that the denial of access to impugned news articles constituted an interference with the freedoms of expression and the press. Article 9 of the Law no. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed by means of Such Publications (“Law no. 5651”), which is the legal basis of the interference, lays down the procedure as to the examination of the requests, filed by those who complain of an alleged violation of their personal rights, for the removal of the relevant content, or denial of access thereto which will directly be ordered by the magistrate judges.
The wording of Article 1 of Law no. 5651 points out that the extent of the procedure allowing for denial of access is confined to the online content arousing a criminal suspicion. Accordingly, a decision ordering denial of access may be issued in case of any attack against personal rights only when there is a suspicion that the impugned online content constitutes an offence pursuant to the relevant penal codes. However, Article 9 of the same Law does not include any statement which confines the extent of denial of access to the online publication constituting an offence. Nor is there any criterion/threshold specified therein as to the degree of the severity that the tortious act against personal rights must attain for the employment of this procedure. Moreover, it gives an impression that the procedures allowing for the denial of access, which are introduced in Law no. 5651, are all in the form of a measure.
In the present case, the Court has found it necessary to address whether the interference with the applicants’ freedom of expression was compatible with the requirement of being necessary in a democratic society and to accordingly ascertain whether there was any problem emanating from the law.
The Court has already examined the procedure allowing for removal of a disputed content and denial of access thereto, which is introduced by Law no. 5651, in a detailed way and concluded that this procedure is a preventive measure capable of yielding exclusive and swift results, which is intended for ensuring a more effective fight against offences committed via internet and affording a rapid and effective protection for private life and personal rights.
However, none of the disputed decisions issued by the incumbent magistrate judges could demonstrate the need for a rapid elimination of the interference, which was found to form an unlawful attack against the complainant’s honour and dignity due to the impugned online contents, without an adversarial trial being conducted. Nor could it be observed in any of these decisions that a fair balance had been struck between the competing rights. It could not be comprehended from the reasoned decisions –for including general expressions independent of the circumstances of the present case– how it was found established that the impugned online publications had constituted a prima facie and explicit infringement of personal rights.
It is the case also for the decisions issued by the magistrate judges whereby the challenges against the decisions on denial of access were adjudicated. The magistrate judges’ decisions were formulated in a uniform manner including, as a ground, merely a sentence that the first instance decisions involved no unlawfulness and that the challenges were therefore dismissed. Accordingly, the magistrate judges failed to assess whether the impugned decisions ordering denial of access constituted a prima facie violation, as well as to address the allegations and challenges raised by the applicants in the petitions submitted for the revocation of the decisions on denial of access and the annexes thereto.
Nor did the decisions issued by the magistrate judges include any concrete finding that the press had acted in breach of its duties and responsibilities and maliciously distorted the truth. Besides, any criminal investigation or prosecution was initiated with respect to the impugned news articles following the decisions ordering denial of access thereto. Therefore, it appears that access to the news articles in question was blocked for an indefinite period of time. It has been thus considered that such decisions, issued as a measure in the absence of relevant and sufficient grounds, constituted a disproportionate interference with the freedoms of expression and the press as having an effect for an indefinite period.
The decisions issued in the present cases by the different magistrate judges demonstrate that the procedure allowing for denial of access, which is set forth in Article 9 of Law no. 5651, was not applied merely in cases where it could prima facie be understood that there was a violation of personal rights, and that the impugned decisions contradicted the principles established through the Court’s case-law. It has been accordingly observed that Article 9 of Law no. 5651 does not afford basic safeguards for the protection of freedoms of expression and the press, which thus demonstrates that the violation in question stems directly from the law itself.
The procedure allowing for denial of access, set forth in Article 9 of Law no. 5651, is designated by the law-maker as a remedy that is different from the existing trial procedures in the legal system. In practice, upon the rejection of the challenge to the decision ordering denial of access, the decision becomes final. Thereby, although the procedure of denial of access is defined as a measure in the legislative intent of the said Law, access to the given online contents is blocked for an indefinite period of time. It is evident that such restrictions of indefinite nature pose great dangers to the freedoms of expression and the press. In a democratic state of law, any restriction that would preclude the exercise of a given freedom to a disproportionate extent cannot be imposed, whatever the aim sought. Therefore, any statutory provision which bears in form all consequences as a final decision and which has an impact of indefinite nature must embody certain preventive safeguards against arbitrary and disproportionate interferences.
In consideration of the fact that the decisions of the same nature, which are issued by the inferior courts under Article 9 of Law no. 5651 and point to the existence of a systematic problem, are based directly on the said statutory provision, it is evident that there is a need for the re-consideration of the legal system currently operating in the country for the prevention of similar future violations. It is indubitable that it is at the legislature’s discretion to make statutory arrangements which are the significant part of the state policy to be adopted in the regulation of the internet environment. The parliament may, of course, prefer introducing a new statutory arrangement in line with the currently-operating system. It has been considered that in that case, any interference with an online platform should comply with the requirements of a democratic society under Article 13 of the Constitution, and new statutory arrangements to be introduced should provide for the minimum standards so as not to constitute a violation of Article 26 of the Constitution.
In regard of all circumstances of the present case, the Court has concluded that the interference with the freedoms of expression and the press, safeguarded respectively by Articles 26 and 28 of the Constitution, due to the denial of access to the certain websites did not satisfy the overriding requirement of a pressing social need.
Consequently, the Court has found violations of the freedoms of expression and the press and decided to apply the pilot-judgment procedure.
2. Alleged Violations of the Right to Legal Remedies
The right to legal remedies affords everyone raising an alleged violation of a constitutional right the opportunity to have recourse to administrative and judicial remedies whereby he may have his allegations examined and which are reasonable, accessible and capable of precluding the occurrence or continuation of a given violation or redressing the consequences thereof.
The existence of the opportunity to challenge the impugned decisions ordering denial of access as per Article 9 of Law no. 5651 is not per se sufficient, but it must offer a prospect of success also in practice. The applicants could indeed have the opportunity to challenge the impugned decisions ordering denial of access before the relevant authorities as an ordinary remedy. However, these authorities failed to take into consideration the applicants’ allegations and evidence, to exert an effort to balance the competing interests, and to assess whether the impugned interference in the form of the denial of access to certain online contents had complied with the requirements of a democratic society and had been proportionate. Accordingly, it has been concluded that the remedy whereby the applicants could challenge the impugned decisions was not indeed effective in the particular circumstances of the present case.
Consequently, the Court has found a violation of the right to effective remedies and decided to apply the pilot-judgment procedure.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.