Freedom Of Expression And Press Freedoms Were Not Violated Due To The Judgement Of A Judicial Fine For The News Report
Events
The applicant is a columnist for the local newspaper Yeni Marmara (newspaper). The complainant was the provincial chairman of a political party on the date of the incident. Applicant published news articles titled “Awesome Conspiracy” in the issue dated 16/3/2017 and “What FETÖ did in Bursa in the past” in the issues dated 22/3/2017 and 23/3/2017. In the news article titled “Awesome Plot”, the complainant was referred to as “Torun, the lawyer of FETÖ members”.
Upon the aforementioned news reports, the complainant filed a complaint against the applicant requesting punishment for the offence of defamation. Upon the indictment of the Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office), the Criminal Court of First Instance sentenced the applicant to a judicial fine of TL 2,320 for the offence of defamation due to his statements in the news reports in question.
Allegations
The applicant claimed that his freedom of expression and freedom of the press had been violated as he had been sentenced for defamation due to his news report.
Court’s Assessment
In fulfilling the burden of proof, the applicant is not expected to act like a prosecutor proving the truth of a statement. The obligation to investigate mentioned here should be understood not in terms of concrete reality, but in accordance with the way the event unfolded at the time of publication. It is sufficient for the applicant to demonstrate whether the news sources are reasonably reliable in terms of the allegations in question and whether they have endeavoured in good faith to provide accurate and reliable information.
It is seen that the news reports subject to the application as a whole are about the complainant’s relations with public officials and clients who had contacts with the Fetullah Terrorist Organisation/Parallel State Structure (FETO/PDY) in the past. In this context, the court of first instance investigated whether there was an investigation, a lawsuit or a complaint against the complainant in relation to FETÖ/PDY. Accordingly, it was learned that the Chief Public Prosecutor’s Office initiated an investigation against the complainant in terms of FETÖ/PDY membership and that the said investigation resulted in non-prosecution on 6/7/2017. Based on this, the applicant stated that in an environment where similar allegations against the complainant were deemed serious and investigated by the Chief Public Prosecutor’s Office, it would not be unusual for him, as a journalist, to report on the same issue.
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In the concrete case, although it is clear that the applicant reported on an issue subject to an official investigation, it is indisputable that the aforementioned situation will not automatically provide a factual basis for the allegations contained in the news content as a whole. I.n this context, it is necessary to examine the allegations in the content rather than the subject of the news item. In the aforementioned non-prosecution decision, it is seen that the Chief Public Prosecutor’s Office investigation was initiated upon the local press reports indicating that the complainant was associated with FETÖ/PDY and accordingly, it was determined that the complainant “had telephone contact with some suspects associated with FETÖ”.
Apart from this, there is no finding that meets the allegation that “the businesses of those who donated to FETÖ were judicially closed on the condition that the complainant was given a power of attorney”, which is the main basis of the allegations, or that can be considered against the complainant. In this sense, although at first glance it can be said that the applicant’s allegation regarding the complainant’s relations is based on the subject matter, it is not possible to extend the aforementioned determination to form the basis of the relationship between “donation to FETÖ and power of attorney to the complainant”.
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While there is no doubt that politicians should show more tolerance to the news about them than ordinary people, the complainant should not be expected to tolerate allegations that are made in a way to be perceived as real in the eyes of the public, but which cannot be shown to go beyond rumours, as in the concrete case. In the opinion of the Constitutional Court, the applicant made the news report in question without adequately supporting his factual allegation. Therefore, it was concluded that the interference with the freedom of expression and press freedoms of the applicant, who could not demonstrate that he endeavoured to act in a way to provide accurate and reliable information, corresponded to a compelling social need and that the court of first instance did not exceed its margin of appreciation in balancing different interests.
It should also be assessed whether the judicial fine imposed against the applicant is in a reasonable proportionality relationship with the objective pursued. In this context, it has been assessed that the judicial fine imposed against the applicant by the court of first instance was not in an amount that would put the applicant’s economic opportunities in difficulty or eliminate them, and that it was not disproportionate to the aim sought to be achieved – when compared to the amounts usually imposed in such cases and the weight of the news in question.
For the reasons explained above, the Constitutional Court decided that the freedoms of expression and press were not violated.
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