Ruling that access bans violated freedom of expression, freedom of the press and the right to an effective remedy, the Constitutional Court ordered that the applicants be paid TL 8,100 in compensation
CANSU PİŞKİN, ISTANBUL
The Constitutional Court issued its “pilot judgment” in writing concerning nine separate individual applications lodged against online access blocking decisions rendered by criminal judgeships of peace. The Constitutional Court’s unanimous judgment dated 27 October 2021 was published in the Official Gazette on 7 January 2022.
The applications concerned a total of 129 URLs, which included articles published on the news portals Gazete Duvar, Diken, Sol.org.tr, BirGün, Artı Gerçek, and an article by Çiğdem Toker, published in her previous column in Cumhuriyet newspaper. The applications were merged in a single judgment based on legal relevance regarding their subject matter.
The top court ruled that the access ban orders violated freedom of expression and press freedom, enshrined in Articles 26 and 28 of the Constitution, respectively, and the right to an effective remedy, safeguarded in Article 40. The Court also ordered that each applicant be paid TL 8,100 in compensation.
In its judgment, which could set a precedent for similar cases, the top court held that Article 9 of the Internet Law no. 5651 should be amended so as to eliminate further violations. “The provision in question does not contain fundamental safeguards for the protection of freedom of expression and the press, and therefore the violation arises directly from the law,” the top court wrote.
The Court held that the decisions rendered by the judgeships in all nine applications failed to provide clear explanations as to how the online contents subject to complaint had caused a violation of personal rights.
Noting that a similar problem was observed in the decisions of the criminal judgeships of peace tasked with reviewing objections to access ban decisions, the Constitutional Court wrote: “The decisions by the authorities tasked with reviewing the appeals consist of just one sentence, usually stating that the judgment by the first instance court was in compliance with the law and that therefore the objection is rejected. The allegations in the objections filed by the applicants who were seeking the cancellation of the access blocking decisions were not examined.”
The top court pointed out that the decisions rendered by the judgeships contained no concrete findings that the press organization in question had not complied with its duties and responsibilities, and furthermore noted that no criminal investigation or prosecution had been launched against any of the blocked content.
The Court concluded: “The online contents that are the subject of the present applications seem to have been blocked for access for an indefinite period. Since such precautionary measures without relevant and sufficient justification have an indefinite effect, the Court considers that the interference with the freedom of expression and freedom of the press was not proportionate.”
The Court’s pilot judgment has been sent to the relevant criminal judgeships of peace for the elimination of the violations.
The Constitutional Court also sent its pilot judgment to the Parliament, seeking amendments to the legislation regulating online access block orders. The top court held that the legislation should be amended so as to prevent arbitrary practices; that access blocking decisions should be reviewed by regional courts of justice and the Supreme Court of Appeals; and that judges should see access blocking decisions as a last resort.
Accordingly, the Constitutional Court will not be reviewing applications with similar facts for the next 12 months.
Prof. Akdeniz: The 12-month interval will aggravate the violation
Commenting on the pilot judgment, Yaman Akdeniz, a professor of law and legal expert on cyber rights, told Expression Interrupted that the judgment could function as case-law since it identified the structural problems in Turkey’s Internet Law.
However, Akdeniz noted, the fact that the top court will not be reviewing similar applications for one year, until the legislature introduces the relevant amendments, will aggravate the violation.
Akdeniz explained: “If the Parliament introduces an amendment to the provision in question, it will not be effective retrospectively. And the Constitutional Court says it will not be reviewing more applications with similar facts until an amendment is made to the Law in the 12 months following the publication of its judgment in the Official Gazette. Currently there are many similar applications pending before the Constitutional Court, including those that I lodged back in 2015, for example. Keeping all those files pending until an amendment is made will only aggravate the violation. The judgment seems important, but the decision to not review more applications of a similar nature is problematic.”
Stressing that the structural problem identified by the Constitutional Court affected hundreds of applications regarding access blocking decisions, Professor Akdeniz said that the Constitutional Court should issue judgments ruling for violation regarding all similar pending applications and that accordingly, criminal judgeships of peace should not continue to render more access blocking decisions.
Akdeniz also noted that the nine applications combined in the pilot judgment were related to contents that are “the least likely to irritate the political authority.”
“Access blocking requests by President Erdoğan, former Minister Berat Albayrak or former Prime Minister Binali Yıldırım were not among the nine applications selected for the pilot judgment. So, the judgment does not really tackle access blocking decisions regarding content critical of the Justice and Development Party [AKP]. The top court has merged nine applications but there are at least 300 applications still pending before the Court,” Akdeniz added.