Events
The applicants were publishers of national newspapers at the time of the events. The applicants objected to the decision of the Press Advertisement Agency (BİK) to suspend their official advertisements for various periods of time due to some news and columns published in their newspapers. After their objections were rejected by the relevant courts of first instance, the applicants filed separate individual applications to the Constitutional Court.
Allegations
The applicants claimed that the decision to cut off their official announcements and advertisements for various periods of time due to the news and columns published in their newspapers violated their freedom of expression and press freedom.
The Court’s Assessment
The Constitutional Court consolidated 14 individual application files into this individual application file due to the legal connection in terms of subject matter. In all of the applications, the applicants complained about the decision of BİK to withhold the official announcements and advertisements of the newspapers due to the news and columns published in national newspapers.
It has been accepted that the fines imposed on the applicant newspapers, in the form of the suspension of their official announcements and advertisements for various periods of time, constitute an interference with the applicants’ freedom of expression and freedom of the press.
The legal basis of the interference is Article 49 of Law No. 195. The Constitutional Court had previously ruled in Uğurlu Gazetecilik Basın Yayın Mat. Rek. Ltd. Şti. (3) and Estetik Yayıncılık Anonim Şirketi (Estetik Yayıncılık Anonim Şirketi) judgements, the Constitutional Court found that there were some constitutional problems in terms of the application of this article of law without making a further assessment in terms of legality. However, the Constitutional Court, taking into account the continuity of the problematic practice in similar applications that continue to come before the Constitutional Court, examined Article 49 of Law No. 195 in more detail in terms of the legality criterion of the interference.
In the examination made within this scope, firstly, it was explained that Article 49 of Law No. 195 leaves the issue of which acts will be subject to penalties and how they will be subject to penalties entirely to the authority of BİK, that there are no framework provisions for the General Assembly decisions taken by BİK and the decisions of the Board of Directors, and that an ambiguous regulation is allowed by law. According to the Constitutional Court, it cannot be said that the rule in Article 49 of Law No. 195, which makes it impossible for the applicants to foresee their rights and obligations and regulate their behaviour accordingly, meets the condition of foreseeability.
Moreover, it is emphasised that the Law proposes a formal examination of the documents; in practice, the courts do not resolve the merits of the matter brought before them and only check whether the punishment was carried out following the prescribed procedure. It has been pointed out that the fact that the practice regarding the procedure proposed in the article of the Law under review has not yet been established has further deepened the uncertainty existing in the Law regarding the decisions made on this issue at the appeal stage and how the courts of first instance will conduct the judgement in the files before them.
The Constitutional Court concluded that the interventions subject to the application violated the applicants’ rights protected by Articles 26 and 28 of the Constitution in terms of the legality criterion and that the violation arose directly from the law as it did not have the basic guarantees for the protection of freedom of expression and freedom of the press.
Continuing the examination in terms of the requirements of the democratic social order within the framework of the conditions of the concrete case, the Constitutional Court concluded that a fair balance was not observed by BİK by balancing the conflicting rights in the applications subject to the case. When the reasoned decisions of the civil judgeships of first instance that examine the objections to the decisions of the BİK are examined, it is observed that sometimes the evaluations of the BİK are directly taken as basis, but it is not checked whether these evaluations meet the balancing criteria, it is mostly sufficient to state that the decisions of the BİK are in accordance with the procedure and the law and no further evaluation is made.
Therefore, the decisions to impose penalties for official announcements and advertisements within the scope of the news articles subject to the objection were not evaluated within the scope of the balancing criteria between conflicting rights. In addition, it is not understood whether the claims and evidence of the applicants were examined as to whether there were elements such as the reason and time of writing the news articles, against whom and how they were written, background information, factual basis, and if so, for what reasons they were not taken as a basis for evaluation.
In all of the applications merged in this file, the content subject to penalisation is related to news items published in the printed copies or on the websites of national newspapers. With regard to these news items, the BİK and subsequently the courts of first instance should strictly apply the balancing criteria and consider the aforementioned form of intervention as a last resort. On the contrary, in the cases subject to the application, it is understood that the judgeships of the law courts of first instance made decisions without making an assessment as stated.
In this context, it has been assessed that such repetitive judgements point to a systematic problem. It has been observed that the tool used in the interference with the applicants’ freedom of the press lacks legal guarantee and the reasons for its use cannot be justified with relevant and sufficient grounds. In addition, it has been concluded that the interference with the freedoms of expression and the press cannot be characterised as proportionate due to the deterrent effect of such decisions, which are the subject of punishment without relevant and sufficient justification.
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.
Official Announcements and Advertisements
In the light of all these evaluations, it is evident that the current system needs to be reconsidered in order to prevent new similar violations.
When the penalties imposed by BİK are analysed, it is observed that the authority granted to the institution has gone beyond the purpose of regulating the ethical values of the press and has turned into a means of punishment that may create a deterrent effect for some members of the press and this situation has caused a systematic problem.
Undoubtedly, it is within the discretion of the legislature to make legal arrangements that are an important part of the state policy to be adopted in the field of press freedom. In order to ensure that BİK’s interventions on freedom of the press under Article 49 of Law No. 195 are in line with the requirements of the democratic social order in accordance with Article 13 of the Constitution and do not lead to a violation of Article 26 of the Constitution, it would be beneficial to take into account the following minimum standards/suggestions in the new legal regulations to be made:
The conditions regarding the penalties for official announcements and advertisements in Article 49 of the Law should be framed, and the article should be reorganised in terms of form and substance with a certain clarity and certainty,
The limits of the protection offered by the said article to increase the ethical qualities of the press should be clarified and criteria such as a criterion/threshold value should be established as to which actions will violate these qualities.
While regulating the way of appeal against the penalties for official announcements and advertisements in the aforementioned article, the capacity in which the courts of first instance will hear these cases and the scope of the judicial procedure to be applied in this context should be clearly reorganised.
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