Constitutionality Review

A. Review of the Amendment to Certain Phrases in Article 8 of Law no. 5651 by Article 4 of Law no. 7253

The contested provisions envisage the replacement of the phrase “… blocking of access…” laid down in the first sentence of Article 8 § 4 of Law no. 5651 as “…removal of the disputed content and/or blocking of access thereto…”, and the phrase “...access provider…” laid down in the first sentence of Article 11 of the same Law as “…the relevant content, service, and access provider, ….”.

Article 38 of the Constitution does not impose an absolute prohibition on the taking of various measures in relation to a person suspected of committing a criminal offence. There is no constitutional impediment to the implementing of certain judicial and administrative measures against such people. However, the applied measure must be of a temporary nature, which is to be imposed by virtue of an ongoing criminal proceeding. Measures of a definitive nature, which are completely detached from criminal proceedings, undermine the presumption of innocence for giving rise to being regarded as guilty in the absence of a criminal court’s decision.  

It appears that the measure envisaged in the contested provisions is of a final nature, which is applied independently of criminal proceedings in case of finding of an offence by the Head of the Information Technologies and Communications Authority (“the Head”). It is also evident that the impugned measure could not be subject to a judicial review during the criminal proceedings initiated in connection with the alleged offence forming the basis of the administrative measure imposed by the Head. In addition, although the proceedings do not result in a conviction, the measure continues to remain in effect. Under these circumstances, the Court has concluded that the impugned process has rendered dysfunctional the safeguard prescribing that no one shall be treated as guilty of a crime in the absence of a final court decision.

The Court has accordingly considered that the order envisaging the removal of a disputed content, which constitutes a measure of final nature, on the basis of an alleged offence found by an administrative authority in the absence of a final court decision -whereby it is found established that the acts qualified as an offence under criminal codes have been committed-, and the imposition of an administrative fine if removal order is not enforced, are in breach of the presumption of innocence.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

B. Review of the Amendment to Article 9 of Law no. 5651 by Article 5 of Law no. 7253

The contested provisions envisages the amendment of the phrase “….blocking of access…” in Article 9 § 5 of Law no. 5651 as “… removal of the disputed content and/or blocking of access …”; the phrase “…blocking of access…” in the first sentence of the amended Article 8 § 9 as ““… removal of the disputed content and/or blocking of access…”, and the phrase “…individual responsible…” in subparagraph 11 of paragraph 10 added subsequent to paragraph 9 as “…those responsible for relevant content, service, and access providers…”.

Since the contested provisions allow for the removal of the disputed content of internet broadcasts and/or blocking of access thereto, they impose restrictions on the freedom of expression, as well as on the freedom of the press in cases when the given broadcast may be a content falling into the scope of online journalism. Article 13 of the Constitution entails that such a restriction must be prescribed by law and must be compatible with the grounds for restriction enumerated in the Constitution, the requirement of a democratic society, as well as with the principle of proportionality.

The Court has established a large volume of jurisprudence on the alleged interferences with the freedoms of expression and the press arising from Article 9 of Law no. 5651, which were brought before it through individual application mechanism. In its judgment Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others ([Plenary], no. 2018/14884, 27 October 2021), the Court has assessed the procedure introduced through the contested provisions. It has underlined that, as to the application of Article 9, the magistrate judges adjudicated the cases without carrying out adversarial proceedings and demonstrating the need for a pressing and immediate response to eliminate the impugned act. According to the Court, the magistrate judges failed to strike a fair balance between the competing rights; and the reasoned decisions contain general statements without paying regard to the particular circumstances of the given case. The Court has further observed that the relevant authorities failed to sufficiently demonstrate why the impugned broadcasts blatantly infringed the personal rights. The Court has indicated that it is also the same case for the decisions rendered upon appeals against the magistrate judges’ decisions. It has accordingly concluded that the uncertain nature of the scope and extent of Article 9 has granted a wide margin of appreciation to the judicial authorities, and that given the present cases in the individual applications before the Court, the challenges against decisions issued under Article 9 would hardly provide a prospect of success.  

Besides, it appears that the contested provisions do not provide for gradual restriction of access to any online content in response to infringements on personal rights. The restriction imposed under the contested provisions indefinitely denies access as of the date of the decision to a certain online content by preventing access thereto within the borders of a certain country. Therefore, the contested provisions constitute a severe interference with the freedoms of expression and the press. The procedure introduced through the provisions must not be employed in cases where there are other alternative methods to combat harmful online content.  In this sense, the Court has held that the contested provisions failed to offer procedural safeguards capable of precluding arbitrary acts and actions by means of narrowing the margin of appreciation enjoyed by the State authorities. The Court has also concluded that the provisions do not contain safeguards to ensure the delivery of a proportionate decision which is compatible with the requirements of a democratic society.

Consequently, the contested provisions have been found unconstitutional and therefore annulled.