Press Release No: Individual Application 39/17
14.12.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE FREEDOM OF EXPRESSION AND PRESS DUE TO BLOCKING OF ACCESS TO ONLINE NEWS ARTICLES

On 26 October 2017, the Second Section of the Constitutional Court found a violation of the freedom of expression and the freedom of press, respectively enshrined in Articles 26 and 28 of the Constitution, in the individual application lodged by Ali Kıdık (no. 2014/5552).

The Facts

The applicant, owner and chief editor of a web-site publishing in the aviation sector, published five news articles on his web-site in March and April 2014 about O.Y., then chairman of the Turkish Aeronautical Association (“the TAA”). Titles of these news articles are as follows: "If you cause TAA to go bankrupt, I would not leave you in peace”, This document would make you shocked”, “Full of ambition for undeserved money! When would you be satisfied” and “Turkish Aeronautical Association is on the edge of cliff”. It was asserted therein that a meeting was held with O.Y. without touching upon the content thereof, and in brief, the following claims were made: the TAA was managed improperly, policies to the detriment of the association had been pursued, friends of O.Y. granted undeserved profit, total debt of the TAA exceeded 410 million Turkish liras according to the data provided by the Turkish Central Bank, and O.Y. provided employment for 110 of his relatives. Certain documents were published in support of these claims. The applicant was of the opinion that the TAA should focus on its fundamental duties and should be managed by professionals.

Upon O.Y.’s request, the 5th Chamber of the Ankara Magistrate’s Court ordered blocking of access to the impugned news and articles. In his column that he wrote immediately upon the court’s order, the applicant directly targeted O.Y. and maintained that a jet-aircraft and a helicopter of the TAA were rented out, with very low rates, to a political party chairman in the course of the local election campaigns, also recalling that his previous claims had not been refuted yet. The same court accepted O.Y.’s request and once again ordered blocking of access to this article. The objections raised by the applicant against these orders were dismissed by the 14th Chamber of the Ankara Criminal Court.

The Applicant’s Allegations

Maintaining that disclosing corruptions taking place in a prominent public association served high public interest, that all his claims in the articles were concrete and supported by documents, and that the courts issued their orders on the very same day of the criminal complaint filed by O.Y., the applicant complained that his freedoms of expression and press were violated.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The freedoms of expression and press are of vital importance for proper functioning of democracy. These freedoms not only cover the content of information but also the means through which such information is disseminated. Therefore, all kinds of restrictions imposed on web-sites or measures such as blocking of access to news available on web-sites have a real bearing on the freedom of receiving and imparting information. It must be borne in mind that the press affords one of the best means for conveying different ideas and positions in terms of forming public opinion. However, the freedoms of expression and press are not absolute and may be subject to restrictions, provided that the requirements set out in Article 13 of the Constitution are complied with.  

The Constitutional Court concluded that the freedoms of expression and press were interfered in the present case. It also considered that the interference complied with the requirements of “being prescribed by law” and “legitimate aim” enshrined in the Constitution. Therefore, the Court turned to elaborate on the condition of “being compatible with the requirements of a democratic society” and “proportionality”. Accordingly, the Constitutional Court made the following assessments:

First of all, Article 12 of the Constitution imposes certain “duties and responsibilities” on the individuals –including the press– in the enjoyment of the fundamental rights and freedoms. For the press, these duties and responsibilities become more of an issue in cases when the dignity and rights of others may be impaired and especially when reputation of a person whose name is released is at stake. The freedom of press requires journalists to respect professional ethics, to impart accurate and reliable information, and to act in good faith. Malicious distortion of the facts is likely to exceed the limits of acceptable criticism. In the present case, in ordering blocking of access to impugned news and articles, the competent court relied on the fact that the applicant’s allegations made on the news website about O.Y. were not found established by a court decision, that these allegations reflected the applicant’s personal thoughts, and that, therefore, the limit was exceeded in breach of O.Y.’s personal rights. However, O.Y. did not claim before the competent courts that the applicant had reported falsified news by altering or adding to the facts or had acted in bad faith or the way in which he obtained information was unacceptable.

Second, as also previously emphasized in the Constitutional Court’s judgments, requiring journalists to prove full accuracy of a statement like a prosecutor would put an excessive burden on them. Such a requirement may lead to unfair consequences in the proceedings where the journalists are involved. In the present case, the first instance court stated that the claims asserted in news articles may be published only after being found established by a court decision. However, seeking for such degree of certainty in reporting news and expressing opinions leads to complete disregard of the freedoms of expression and press.

Third, the higher the degree of public interest such a news article carries in informing the public, the more tolerance the person concerned must bear. The impugned news and articles concern a prominent institution of Turkey in the aviation sector and the chairman of this institution. Therefore, it is beyond any doubt that the publication of the claims asserted in these news and articles has contributed to a matter of high public interest. 

Fourth, it must be taken into consideration that the freedom of expression safeguards not only the substance of the news and information but also the form through which they are conveyed. The news articles in question are neither insulting nor amount to an arbitrary personal attack. The issue is more of the polemical style and aggressive language used in the news articles, which nevertheless falls within the protection of the freedom of expression. 

Fifth, in interfering with the freedom of expression for the protection of honour and dignity, due regard must be also paid as to whether the person whose honour and dignity sought to be protected has the opportunity to respond to the statements. In his capacity as the chairman of one of the prominent institutions in the aviation sector, certain opportunities were available to O.Y. for informing those concerned and the public of his counter-opinions in this respect.

Sixth, as also noted in the previous judgments of the Constitutional Court, certain freedoms that are of vital importance in a democratic society such as the freedom of communication, the freedom to impart ideas and expressions, and the freedom to receive news or ideas and the freedom of economic enterprise, are exercised by individuals through the internet. It is therefore necessary for the courts and relevant public authorities to act responsibly in interfering with the sphere of internet.  

Seventh, in blocking access to the concerned websites the first instant courts relied in Article 9 of the Law no. 5651 (titled “the Regulation of Publications on the Internet and Combatting Crimes Committed by means of Such Publication”). This law, however, prescribes blocking of access to websites only in the case of unlawful interference with personal rights and for the purpose of immediately halting the infringement of the individual’s honour and dignity. The aim of the measure of blocking access to a website is to strike a delicate balance between the freedom of press and personal rights through preventing an apparent and continuing interference with personal rights by blocking access to online publications unjustly harming individuals and by halting dissemination of untrue information about them and thereby ceasing tarnishing their reputation. Therefore, this remedy must be applied in a manner which would not encroach on the essence of the freedom of press and which also affords protection to the interests of the concerned individual.

In case of an interference with the personal rights through internet, one of the remedies available in the Turkish legal system for the protection of the personal rights is the non-adversarial judicial remedy before the magistrate judge’s offices, which is prescribed in Article 9 of the Law no. 5651 and applied in the present case. However, under this remedy media outlets to be affected by the court order are not provided any safeguards or allowed to interfere. Therefore, it is difficult to strike a balance between the competing rights in the application of this remedy. The order for blocking access to a certain online content also serves to inform the public that the relevant (blocked) content constituted an attack on individuals’ honour and dignity. It must be recalled that such an order may be entered at the end of a non-adversarial trial only in cases where the unlawfulness and the interference with the personal rights are so explicitthat would require an immediate action.

Besides, as is the case in the present application, in the absence of a further criminal investigation or prosecution and, therefore, re-examination of this measure, blocking access turns to a continuous measure. It is obvious that such restrictions for an indefinite period of time poses major threats to the freedoms of expression and press. For these reasons, it must be acknowledged that this measure must be applied only in exceptional circumstances compared to the other remedies available in the legal system for the protection of the individual’s honour and dignity.

In the present case, the first instance court ordered blocking access to the impugned news and articles for interfering with O.Y.’s personal rights. However, it failed to demonstrate the need for the immediate removal –before adjudication of the dispute in adversarial proceedings– of the unlawful interference with the complainant’s honour and dignity.

Regard being had to all above-mentioned circumstances of the case, it has been concluded that the interference with the freedoms of expression and press, enshrined in Articles 26 and 28 of the Constitution, in a way of blocking access to certain online news neither meets a pressing social need nor is necessary in a democratic society.

Besides, in a democratic constitutional state, any interference with the fundamental rights and freedoms must be proportionate, regardless of the aim pursued. Even blocking access to a website with a view to temporarily suspending the interference with the personal rights may be acceptable, such a measure with the possible consequences of lasting for an indefinite period of time and lacking sufficient justification cannot be considered to be proportionate. In the present case, the Constitutional Court found that access to the online news articles were blocked indefinitely without providing a justification.

For these reasons, the Constitutional Court found a violation of the freedoms of expression and press safeguarded by Articles 26 and 28 of the Constitution.

 

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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