Social media, which has become increasingly important in our lives, challenges customary practices, regulations, and rules. While people can directly disseminate their thoughts through social media, which has become an essential platform for freedom of thought and expression, on the other hand, the rules and principles introduced in the light of years of experience for press activities have become inoperative.
While anyone with a social media account can instantly share their thoughts on any subject, it has been discussed for a long time how much of these shares are within the limits of press freedom. Regulation efforts in this regard are also quite different. At this point, it is possible to say that the access blocking regulations and practices in Turkey since 2013 has created much controversy. It seems that, in practice, the power of blocking the content has gradually evolved into an effective tool of censorship.
Many applications reach the Constitutional Court in this regard. The Constitutional Court decided on 27.10.2021 about some applicants who were subject to a series of access bans. The decision was published in the Government Gazette of the Republic of Turkey on 7.01.2022.
The decision discussed by the General Assembly of the Constitutional Court and taken unanimously by fifteen judges is likely to have significant consequences for many aspects. Within the framework of all applications, the Court decided that the right of “freedom of expression and press” regulated in Articles 26 and 28 of the Constitution of the Republic of Turkey and the right of “effective application” regulated in Article 40 were violated. In addition, the Court ruled those:
• The violation is due to a structural problem. Therefore, the pilot decision procedure will be applied.
• It has been decided to report the Turkish Grand National Assembly to solve the structural problem, mainly arising from article 9 (Unpublishing and blocking content) of Law 5651 on the Regulation of Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts (Law 5651).
• Within the pilot decision procedure framework, the examination of the applications made or to be made on the same subject was postponed for one year following the publication of the decision in the Government Gazette.
• It has been decided to pay the applicants 8.100.00 TL for non-pecuniary damages. In addition, it was decided to pay each applicant the costs of the proceedings.
In its decision, the Constitutional Court referred to the Indicators for Internet Freedom, which is the annex to the Recommendation of the Committee of Ministers of the Council of Europe on Internet Freedom to the Member States and the case-law of the ECtHR. In addition to these, the Court referred to the opinions of the Venice Commission on the Law on the Regulation of Broadcasting on the Internet and Combating Crimes Committed Through These Broadcasts.
The Court has revealed that internet journalism – as long as it fulfills the essential function of the press – should be considered within the scope of freedom of the press. Access blocking decisions, which are the subject of the applications, were handled within the scope of the criteria of the lawfulness of the intervention, legitimate aim, compliance with the requirements of the democratic social order, and proportionality.
The Court made a detailed assessment of the legality of the interference. According to article 1 (Purpose and scope) of Law 5651, content on the Internet that does not constitute a crime is outside the scope of the Law. On the other hand, the regulation in article 9 is suitable for broad interpretation; It has been revealed that the restriction on freedom of expression creates hesitation in terms of the scope, purpose, and limits of the restriction and the legal nature of the restriction instrument.
The Court; stated that blocking the access stipulated in the Law mentioned above is an uncontentious proceedings remedy. In this context, it is evident that the representatives of the press organs affected by the decision cannot benefit from the principle of equality of arms. Those related to the media organs are deprived of the procedural safeguards of the judicial Law. It concluded that balancing between conflicting rights became difficult. Such an avenue was an unusual way to be employed, limited only to situations where it was apparent at first glance (prima disaster) that broadcasting overtly violated personal rights. (Such as posting nude pictures or video footage of someone)
There are Agricultural Credit Cooperative groceries in Turkey. These groceries deliver natural and quality products purchased from Tarım Kredi partners to consumers by processing or operating them in their facilities. One of the applications made to the Constitutional Court concerns blocking access to a news article about the person appointed as the general manager by proxy to Tarım Kredi Birlik JSC, to which Agricultural Credit markets are affiliated. The Ministry of Agriculture and Forestry has fined companies in which the general manager by proxy is a founding partner several times for fraudulent food production. The blocked news includes that these companies continue to produce food despite the penalties. The Court decided that this news (and other news it evaluated) fell within the scope of the duty and responsibility of the press on informing. The Court also decided that the indefinite blocking of access to these news items involved a disproportionate interference with the freedom of expression and press.
Access blocking decisions should be like a precautionary measure. The Court also found it important that no criminal investigation or prosecution was initiated regarding the related news following the blocking of access. The Court stated that this violation directly arose from Law 5651. Article 9 of the Law, in its current form, does not include procedural safeguards of judicial Law to prevent arbitrary acts by narrowing the discretion of public authorities. The article also does not have guarantees to ensure that decisions are made following the requirements of democratic social order and proportionally.
The Court also pointed to the proposals for solutions since the violation stems directly from the Law, more accurately because article 9 is unconstitutional. The Court noted that today’s modern democratic states do not prefer to interfere with the online environment by state power bodies directly. The Court emphasized that all actors who have a say in the fight against illegal content on the Internet cooperate and adopt methods in which states are less involved. In this context, the Court expressed its opinion as follows:
a. Article 9 of Law 5651 should be made predictable and harmonized with Article 1, which sets out the purpose of the Law. It is necessary to reveal with a certain degree of certainty what legal consequences will be attached to which behavior or facts and what kind of an intervention authority will arise for public authorities in this context.
b. If it is decided that the decisions taken within the scope of the Law are protective measures, a trial by the protective measures in the Law 5271 on the Criminal Procedure must be secured. In addition, the fate of the access blocking measure and how the subsequent contentious proceedings will be carried out should be revealed.
c. It is necessary to bring an appellate authority against the decisions made about the objections made against the decisions under the Law. This situation is vital in preventing the existing violations of freedom of expression and the press, which are indispensable for the democratic order.
d. In cases where internet content needs to be limited, provisions should be introduced to guide criminal judgeships of peace. (The peace judgeships make access blocking decisions.)
These findings reveal that most of the evaluations of blocking access, which is extremely important and still made by criminal judgeships of peace, are unconstitutional. In this context, the Court decided to operate the ‘pilot decision procedure’ specified in Article 75 of the Rules of Procedure on the functioning of the Constitutional Court. Accordingly, a pilot decision procedure will be applied in applications that arise from a structural problem and may lead to repeated violations. The relevant authorities (here, the Turkish Grand National Assembly) will solve the structural problem from its source.
Since 2013, the Constitutional Court made a detailed and comprehensive assessment of the problem for the first time. The Constitutional Court had concluded that in previous applications regarding the relevant articles of the Law on the Regulation of Broadcasting on the Internet and Combating Crimes Committed Through These Broadcasts, perhaps in keeping with the spirit of the time, there was no violation of the Constitution. Turning the access blocking processes into a censorship tool has become an inextricable situation. The Constitutional Court intervened in this situation in its decision. Moreover, he pointed out that although the decision on blocking access is an injunction, it turns into an indefinitely enforced significant decision yet does not include judicial guarantees regarding the examination of merits. The Court informed the Turkish Grand National Assembly about these issues and revealed the necessity of legal arrangements to solve the problem.
This decision should be expected to have several consequences. First of all, the determination that the content on the Internet that does not constitute a crime is outside the scope of the relevant Law will radically change the applications and decisions to be taken regarding blocking access. All peace judgeships that do not take this fundamental determination into account will be deemed unconstitutional. If decisions to the contrary continue to be made after the decision of the Constitutional Court and the legislator does not intervene in the process promptly, even the state’s responsibility for compensation will come to the fore.
Decisions on blocking access to be taken ” indefinitely ” may also be considered baseless with this decision. If an application is made to open a criminal investigation within a certain period against the person concerned of the injunction decisions, and unless such an application and a criminal prosecution are opened, the precautionary access blocking decision should be revoked.
We should also state that paying attention to the pilot decision implementation is helpful. Although the Court postponed the examination of applications with this content for a year after the decision was published in the Official Gazette, individual applications must be filed in due time against the finalized access ban decisions made by the peace judgeships in the ongoing processes. Suppose the Grand National Assembly of Turkey does not regulate the period mentioned above. In that case, the Constitutional Court will continue to examine the applications related to the subject.
We should thank the Constitutional Court for its decision, which means an invitation to a fundamental solution to a critical democracy problem. Now the job falls to the actors of the subject. The Turkish Grand National Assembly should create a platform where all relevant parties can participate. Parliament should start working for a democratic solution that will ensure the effective use of freedom of thought and expression and the freedom of the press.
This article has been translated into English by Trainee Lawyer Çimen Tatar.
Winnowers (Loguivy), Henri Rivière (French, Paris 1864–1951 Paris)