Parliament yet to amend Internet Law based on Constitutional Court’s 2021 pilot judgment that found violations of freedom of expression due to access blocking decisions as magistrates continue to issue more orders

ÇAĞRI SARI

In September, the Constitutional Court rendered a new judgment concerning an access blocking decision. Ruling on an application filed in December 2019, the Constitutional Court held that a magistrate’s decision blocking access to a 2019 news article published on the news portal Artı Gerçek “violated freedom of expression and freedom of the press, safeguarded in articles 26 and 28 of the Constitution.” Artı Gerçek’s report that had been blocked for access was titled “Karakoldan ‘havan mermisi’ yanıtı: Deneme amaçlı biz atıyoruz” (Station on mortar shells: We fire them for test purposes).

The Constitutional Court’s judgment, published on the Court’s official website on 8 November 2023, held that the violation was directly caused by Law No. 5651 on Regulating Internet Publications and Combating Crimes Committed by Means of Such Publications -- or the “Internet Law.” 

An excerpt from the judgment read: “The court has concluded that, similar to Article 9 of Law No. 5651, [which regulates the removal of content or blocking of access] Article 8/A, in its current form, violates the freedoms of expression and the press since it lacks fundamental safeguards that can prevent arbitrary behavior by narrowing the discretionary power of public authorities and that can guarantee the establishment of a fair balance between freedom of expression and the legitimate right of the democratic society to protect itself against the activities of terrorist organizations, and that the violation is directly caused by the law.”

The new judgment comes almost two years after the Court’s 27 October 2021 “pilot judgment,” in which nine individual applications against access blocking decisions were merged by the Court based on legal connection in respect of subject matter. As in its 2021 pilot judgment, the Plenary has once more decided to send the judgment to the Parliament for the necessary amendments to be made to resolve the structural issues that arise from the relevant provisions since the violations found by the Court are caused directly by the law.

In its pilot judgment, published in the Official Gazette on 7 January 2022, the Court had also held that it would not be examining future or pending applications with similar facts during the one year it gave the Parliament to amend Article 9 of the Internet Law in accordance with the findings in the pilot judgment. The pilot judgment concerned magistrate decisions that blocked access to a total of 129 URLs, which included news content published on Gazete Duvar, Diken, Sol.org.tr, BirGün, Artı Gerçek and the website tarımdanhaber as well as an article written by journalist Çiğdem Toker for her regular column in Cumhuriyet newspaper.

Pilot judgment ignored

However, in the 20 months that have passed since the judgment was published in the Official Gazette, the Parliament has not amended the relevant legislation. Meanwhile, magistrates continued to issue new access block orders. Despite the time period foreseen in the pilot judgment elapsing, the Constitutional Court itself did not fulfill the requirements of its ruling since it did not resume examining similar applications at the end of the one-year hiatus in which it waited for the Parliament to amend the law.

Professor Yaman Akdeniz, founder of the Freedom of Expression Association (İFÖD) and an expert on informatics law and cyber rights, told P24 that just as the Parliament has not acted to amend the relevant legislation during the one-year time period given by the Court, magistrates have continued to issue new access block orders that could continue to lead to further violations of press freedom and freedom of expression.

Akdeniz stressed that although the Parliament enacted several laws and amendments since the Constitutional Court’s pilot judgment, including the “disinformation” law that entered into force in October 2022, it never took up an amendment to the Internet Law on its agenda. He added: “After notifying the Parliament, the Constitutional Court has announced the list of 334 pending applications it had received under the scope of the pilot judgment. And yet, what have the magistrates done? They have issued hundreds, if not thousands of similar orders as though the Constitutional Court’s pilot judgment did not exist.”

In response to a question on whether the Constitutional Court has undertaken any initiative in accordance with its pilot judgment during this period, Akdeniz said: “No. Despite 11 months having passed since the end of the one-year period it allowed the Parliament, the Constitutional Court did not render any new judgments on applications filed against Article 9 of the Internet Law and in fact it forgot about the 334 applications pending under the pilot judgment and subsequent applications. The Constitutional Court should have immediately started examining and adjudicating those applications based on its own pilot judgment, but the Court did not issue another judgment concerning Article 9 of the law.”

According to data provided by Akdeniz, of the 334 applications which the Constitutional Court postponed examining due to its pilot judgment, two were filed in 2014; 10 in 2015; 26 in 2016; 31 in 2017; 34 in 2018; 55 in 2019; 45 in 2020; 86 in 2021 and 45 in 2022.

Court overshadowed by local courts and magistrates

Professor Akdeniz added that he had filed an application with the Information Technologies and Communications Institution (BTK) to obtain statistical information on access block orders but was rejected by the BTK and that upon his application to the Constitutional Court on this matter, the Court had ruled for a violation of the freedom of expression.

Recounting that the BTK had brought up the matter with the Council of State as though the Constitutional Court had not ruled for a violation in his application, Akdeniz said: “It is clear that the Constitutional Court has been overshadowed by local courts and especially magistrates for a long time. These dark days were long in the making.”

Referring to the most recent crisis in the high judiciary, Akdeniz said: “It may be said that the Constitutional Court prepared the grounds for its confrontation with the Supreme Court of Appeals after its Can Atalay judgment itself. We have long said that there is no effective domestic remedy in Turkey. The Constitutional Court has turned into a part of this ineffective domestic remedy instead of providing a solution.”

According to an İFÖD report prepared by Yaman Akdeniz and Ozan Güven, in 2022 a total of 137,717 domain names in Turkey were blocked for access as identified by the EngelliWeb study. With the inclusion of the websites to which access was blocked in 2022, a total of 712,558 domain names and websites from Turkey were blocked for access under 616,239 separate orders issued by 814 state institutions and courts as of the end of 2022.

High-ranking public officials behind ban orders

When asked about significant access blocking decisions issued in 2023, Professor Akdeniz listed the blocking of the online forum Ekşi Sözlük, the continued censorship on Deutsche Welle (DW) and Voice of America (VoA) news websites and the Şile Criminal Court of Peace’s order for the blocking of access to İFÖD’s EngelliWeb website and even to its 2021 report titled “Year of Hurt Reputations, Honor and Dignity of High Level Public Sector Persons” among the significant interventions this year.

Akdeniz pointed out that public persons usually applied for access block orders on political news and added that the director of the National Intelligence Organization (MİT) had recently joined this group. Akdeniz added that the order for the removal of Timur Soykan’s article “Adliyede rüşvet çarkı” (Ring of bribery at the courthouse) that was published in BirGün and all other related news coverage and social media content as well as Tolga Şardan’s article which led to his recent arrest being blocked for access would be listed among the significant interventions in their 2023 reports.