Press Release No: Individual Application 70/22
Press Release concerning the Judgment Finding Violations of the Freedoms of Expression and the Press due to the Decision Suspending the Right to Publish Official Announcements and Advertisements (Pilot Judgment)
On 10 March 2022, the Plenary of the Constitutional Court found violations of the freedoms of expression and the press, safeguarded by Articles 26 and 28 of the Constitution, in the individual application lodged by Yeni Gün Haber Ajansı Basın ve Yayıncılık A.Ş. ve Others (no. 2016/5903).
The applicants were the publishers of the relevant national newspapers at the material time. They challenged the decision whereby the Press Advertising Agency (“the Agency”) ordered the suspension of their right to publish official announcements and advertisements for various periods of time due to certain news articles and columns published on their newspapers. Upon the rejection of their challenges by the incumbent inferior courts, the applicants severally lodged individual applications with the Court.
The Applicants’ Allegations
The applicants claimed that the suspension of their right to publish official announcements and advertisements for various periods of time due to the publication of certain news articles and columns in their newspapers had violated their freedoms of expression and the press.
The Court’s Assessment
The Court joined under this application 14 individual applications as being interrelated in legal terms. In all these applications, the applicants complain of the suspension by the Agency of their right to publish official announcements and advertisements due to the publication of certain news articles and columns in the national newspapers.
It has been acknowledged that the sanctions whereby the applicant newspapers were deprived of their right to publish official announcements and advertisements for various periods of time amount to an interference with their freedoms of expression and the press.
The legal basis of the impugned interference is Article 49 of Law no. 195. In its previous judgments in the cases of Uğurlu Gazetecilik Basın Yayın Mat. Rek. Ltd. Şti. (3) and Estetik Yayıncılık Anonim Şirketi, the Court noted certain constitutional setbacks in terms of the application of this statutory provision without making any further examination as to the principle of legality. However, in view of the continuous nature of this problematic practice in similar types of applications brought before it, the Court then carried out a thorough examination of Article 49 of Law no. 195 with respect to the legality criterion.
At the end of this examination, the Court has noted that it is completely at the discretion of the Agency, by virtue of Article 49 of Law no. 195, to determine which act would entail penalty and the corresponding sanctions to be imposed, that the Law contains no framework provisions with respect to the decisions of the General Assembly and Board of Directors of the Agency, and that the Law contains regulations that have no definite boundaries. In the Court’s opinion, Article 49 of Law no. 195, which precludes the applicants from foreseeing their rights and obligations and thus acting accordingly, does not satisfy the foreseeability test.
It has been further emphasised that the Law envisages merely a formal examination over the file, that the courts do not indeed deal with the merits of the issues brought before them but merely review whether a given sanction was imposed in line with the procedure prescribed. It has been pointed out that the fact that the procedural implementation prescribed in the contested statutory provision has not yet become well-established has also deepened the uncertainty in the Law as to the formulation of the decisions at the appellate stage and the adjudication of the case-files before the inferior courts.
Examining the impugned interferences in terms of legality criterion, the Court has concluded that they were in breach of the applicants’ rights enshrined in Articles 26 and 28 of the Constitution, and that as the impugned interferences were not accompanied with the basic safeguards intended for the protection of the freedoms of expression and the press, the violation in question resulted directly from the law.
Proceeding with the examination, in terms of the requirements of a democratic society, under the particular circumstances of these cases, the Court has concluded that in these cases, the Agency failed to balance competing rights at stake and thus to strike a fair balance. In consideration of the reasoned decisions that were issued by the incumbent civil courts handling the challenges to the Agency’s decisions, it has been observed that the civil courts directly relied on the assessments of the Agency without scrutinising whether these assessments met the balancing criteria or mainly confined themselves to stating that the Agency’s decisions were compatible with the procedure and the law without making any further assessment.
Accordingly, in these two above-cited judgments, the Court has considered that the decisions whereby the Agency ordered the suspension of the right to publish official announcements and advertisements failed to balance the competing rights at stake. Besides, it cannot be inferred whether the civil courts took into consideration the applicants’ claims and evidence to the effect that the decisions lacked elements such as the motivation and time of the publication of the impugned news articles, the addressees of these news and the way in which they were formulated, as well as the background information and factual basis. Nor can it be ascertained, if the civil courts took into consideration such claims and evidence, why they failed to take these claims and evidence as basis for the assessment.
Turning to the present case, the Court has noted that in all individual applications joined under this application, the contents giving rise to the impugned sanctions concern the news articles published on the printed copies or websites of the national newspapers. In respect of these news articles, both the Agency and subsequently the civil courts should have strictly applied the balancing criteria and considered the impugned interference as a measure of last resort. However, the incumbent civil courts adjudicated the cases without conducting any such assessment.
In this sense, given the present applications, the Court has considered that such stereotype decisions point to a systematic problem. The Court has also observed that the means employed for the interference with the applicants’ freedom of the press did not offer necessary legal safeguards, and that the reasons, which necessitated the use of the means in question, were not explained with relevant and sufficient grounds. The Court has further concluded that as such decisions imposing a sanction in the absence of any relevant and sufficient grounds had a chilling effect on those concerned, the impugned interference with the freedoms of expression and the press cannot be regarded as proportionate.
Consequently, the Court has found violations of the freedoms of expression and the press and decided on the application of the pilot judgment procedure.
Existence of a Systematic Problem
In the light of all assessments and considerations, there is an apparent need to re-address the current system for the prevention of similar future violations.
Given the sanctions imposed by the Agency, the Court has observed that the power conferred on the Agency indeed goes beyond the aim of regulating the ethical values of the press and sometimes turn into an instrument of punishment that may have a chilling effect on members of the press, which has led to a systematic problem.
Undoubtedly, it is at the legislature’s discretion to introduce the statutory regulations, which is a significant part of the State policy to be employed in terms of the freedom of the press. The following minimum standards/recommendations should be taken into consideration in introducing new statutory regulations so as to ensure that the interferences by the Agency with the freedom of the press under Article 49 of Law no. 195 comply with the requirements of a democratic society under Article 13 of the Constitution and give rise to no violation of Article 26 thereof:
The legal framework as to the conditions pertaining to the decisions ordering the suspension of the right to publish official announcements and advertisements, which is laid down in Article 49 of the Law, should be put in place, and Article 49 should be re-formulated, in form and in substance, in a way that would be sufficiently clear and precise.
The limits of the protection offered by this provision for the enhancement of the ethical values of the press should be clarified, and certain criteria -such as the determination of a standard/threshold to ascertain which acts would be in breach of such ethical values- should be set down.
As regards the judicial challenges to the sanctions envisaging the suspension of the right to publish official announcements and advertisements, the capacity of the inferior courts in dealing with such challenges as well as the scope of the trial procedure that they will apply in this process should be defined in a precise manner.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.