Violation Of The Freedoms Of Expression And Press And The Right To Effective Application Due To The Blocking Of Access To A Series Of News On Internet News Sites (Pilot Decision)
Events
The applicants objected to the access blocking orders issued by the courts in relation to 129 news items published on the website of a national newspaper and some online news websites. After their objections were rejected by the relevant courts of first instance, the applicants filed individual applications to the Constitutional Court.
Allegations
The applicants claimed that their freedoms of expression and press and their right to effective remedy were violated due to the blocking of access to a series of news articles published on internet news websites.
The Court’s Assessment
1. Regarding the Allegation of Violation of Freedom of Expression and Press
The Constitutional Court consolidated 9 individual application files into this individual application file due to the legal connection in terms of subject matter. All applications complain about the blocking of access to a total of 129 URL addresses by the criminal judgeships of peace upon the request of persons who claim that their rights to honour and reputation have been violated due to the statements contained in the internet content.
By blocking access to the news, an interference was made against the freedoms of expression and press. The legal basis of the intervention is Article 9 of the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications, which regulates the procedure for the examination of requests for the removal of the relevant content from publication or the direct blocking of access to such content by criminal judgeships of peace upon the complaint of persons claiming that their personal rights have been violated.
From the text of Article 1 of the Law No. 5651, it is understood that the scope of the access blocking procedure is limited to internet content that is suspected of a criminal offence. Accordingly, in order to apply for blocking of access against an attack on personal rights, there must be a suspicion that the internet content subject to the dispute constitutes an offence according to the criminal law. However, there is no indication in Article 9 of the Law that the scope of the access blocking remedy is limited to the internet publication that constitutes an offence. Moreover, no criterion/threshold value has been determined regarding the severity of the wrongful act against personal rights in order to use this remedy. In addition, the impression is created that all of the access blocking procedures introduced by the Law in question are of a precautionary nature.
In the concrete case, it is considered that there is a need to discuss the compatibility of the interference to the freedom of expression of the applicants with the criterion of the requirements of the democratic social order and to determine whether the problem arises from the law or not.
The Constitutional Court has previously examined in detail the procedure for the removal of content and blocking access to the publication introduced by Law No. 5651, and stated that this procedure is a special and fast-resulting protection measure envisaged by the legislator due to the need to combat crimes committed on the internet more effectively and to protect private life and personal rights in a fast and effective manner.
However, in none of the decisions of the criminal judgeships of peace subject to the application, the need to eliminate the unlawful interference with the complainant’s honour and reputation due to the internet broadcast without a contradictory trial, without delay and expeditiously has not been demonstrated. It has also not been established that a fair balance between conflicting rights has been observed in any of the judgements rendered by the judges. It is not clear from the reasoned decisions how it was determined that the internet publications subject to the complaint violated the personal rights in a way that is obvious and obvious at first glance, since they contain general statements that are independent of the circumstances of the concrete case.
A similar situation was observed in the decisions of the criminal judgeships of peace in charge of evaluating the objections to the access blocking decisions. The decisions of the appeal authorities uniformly consist of one-sentence justifications stating that there is no violation of law in the decisions rendered by the courts of first instance and therefore the objection is rejected. Therefore, the compatibility of the access blocking decisions subject to the objection with the doctrine of prima facie violation has not been assessed, the allegations contained in the petitions and annexes submitted by the applicants requesting the lifting of the access blocking decisions have not been examined, and the objections put forward have not been evaluated.
The decisions of the criminal judgeships of peace do not contain any concretised findings that the press did not comply with its duties and responsibilities and that the truth was distorted maliciously. Moreover, it could not be determined that a criminal investigation or prosecution was opened after the decision to block access to any of these news items. Therefore, the news items subject to the concrete applications appear to have been blocked for an indefinite period of time. Since such decisions taken as a precautionary measure without relevant and sufficient justification have an indefinite effect, it is considered that the interference with the freedoms of expression and press is not proportionate.
The decisions of the criminal judgeships of peace in different jurisdictions in the concrete cases show that the access blocking procedure in Article 9 of Law No. 5651 is not limited to the cases where it can be understood at first glance that personal rights are violated, and that the principles set out in the case-law of the Constitutional Court are not followed in the decisions. It is concluded that the article in question does not have the basic guarantees regarding the protection of freedom of expression and press freedoms and therefore the violation is directly caused by the law.
Article 9 of Law No. 5651 on the blocking of access was designed by the legislator as a different procedure from the existing judicial procedures in the legal system. In practice, the decision becomes final upon the rejection of the objection application against the access blocking decisions, and access to the internet content subject to the complaint is blocked for an indefinite period of time, although access blocking is defined as a measure in the justification of the Law.
It is clear that such indefinite restrictions pose great dangers for freedom of expression and freedom of the press. In a democratic state of law -regardless of the motivated purpose- restrictions cannot be at a level that would disproportionately eliminate the exercise of freedom. Therefore, a rule, which has all the consequences of a final judgement in formal terms and has an indefinite effect, must include certain safeguards against arbitrary and disproportionate interventions.
Considering that the decisions of the courts of appeal in the same direction, which indicate the existence of a systematic problem within the scope of Article 9 of Law No. 5651, stem directly from the provision of the law, it is obvious that the current system currently operating in our country needs to be reconsidered in order to prevent similar new violations. Undoubtedly, it is at the discretion of the legislative body to make legal regulations, which are an important part of the state policy to be adopted in terms of organising the internet environment.
Of course, the parliament may also prefer to make new legal arrangements while remaining within the existing system. In this case, it is considered that it would be useful to take into account minimum standards in the new legislative arrangements to ensure that interference with the online environment is in accordance with the requirements of the democratic social order under Article 13 of the Constitution and does not lead to a violation of Article 26 of the Constitution.
When all the circumstances of the application are taken into consideration, it is concluded that the interference with the freedoms of expression and the press, which are protected under Articles 26 and 28 of the Constitution, does not correspond to a sufficient social need pressure that outweighs.
For the reasons explained above, the Constitutional Court decided that the freedoms of expression and press were violated and that the pilot judgement procedure should be applied.
2. Regarding the Allegation of Violation of the Right to Effective Application
The right to an effective remedy provides everyone who claims that a constitutional right has been violated with the opportunity to apply to administrative and judicial remedies that are reasonable, accessible, and capable of preventing the occurrence or continuation of the violation or eliminating its consequences, in accordance with the nature of the right.
The fact that the possibility to appeal against access blocking decisions is included in Article 9 of Law No. 5651 is not sufficient by itself; this remedy must also offer a chance of success in practice. Although the applicants were able to apply to the objection authorities, which are determined as the ordinary remedy against the access blocking decisions, the objection authorities did not take into account the allegations and evidence of the applicants, did not endeavour to balance the conflicting interests, did not evaluate whether the intervention in the form of blocking access to internet content was in accordance with the requirements of the democratic social order and whether the intervention was proportionate. Accordingly, it was concluded that the objection authority was not effective in the concrete application conditions.
For the reasons explained, the Constitutional Court decided that the right to effective remedy was violated and the pilot judgement procedure should be applied.
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