Constitutionality Review

Contested Provision

The contested provision stipulates that those who disseminate false information concerning the internal and external security of the country, public order and public health, with the sole purpose of creating panic, fear or anxiety among the people, which potentially disrupts the public peace, shall be sentenced to imprisonment.

Ground for the Request for Annulment

It was maintained in brief that the contested provision amounted to a severe interference with the freedom of expression; that the notion “false information” was vague and might lead to unforeseeable consequences in terms of the interpretation and application of the provision; that the Turkish legal system already provided other means capable of combatting misinformation likely to disrupt the public order, such as blocking of internet access and application of criminal provisions; and that the sanction prescribed for the impugned offence allowed for detention, which could create a chilling effect. The contested provision was therefore claimed to be unconstitutional.

The Court’s Assessment

The Court has observed that the contested provision has been formulated in a sufficiently clear and precise manner, specifying -beyond any doubt- the objective and subjective elements of the offence, the nature and severity of the offence, and the aggravated forms of the offence, which therefore complied with the principle of legality.

Freedom of expression constitutes one of the fundamental pillars of a democratic society, serving as an essential precondition for societal and individual development. A democratic society thrives on the existence of free and original thoughts, which can only be achieved by ensuring a healthy flow of information. Driven by technological developments, the speed of information dissemination has significantly increased. While this development brings numerous positive aspects, the fact that false information replaces the truth adversely affects the individuals’ ability to form authentic opinions. In this respect, it is apparent that imprisonment of individuals who disseminate false information concerning the internal and external security of the country, public order and public health, with the sole purpose of creating panic, fear or anxiety among the people, which potentially disrupts the public peace, contributes to preserving public peace and thus preventing the disruption of public order. Therefore, it is evident that the provision serves the legitimate aim of maintaining and ensuring public order and security.

In addition, the dissemination of false information that potentially disrupts the public peace may jeopardise significant public interests related to the internal and external security of the country, public order and public health. Moreover, false information offers no reasonable contribution to public debates. It has therefore been considered that the contested provision corresponds to a pressing social need.

However, imposition of punishment for disseminating false information concerning the internal and external security of the country, public order and public health, with the sole purpose of creating panic, fear or anxiety among the people, which potentially disrupts the public peace will create a chilling effect on the disruption of public order and security. Accordingly, the contested provision cannot be said to be unsuitable for achieving the legitimate aim of maintaining and ensuring public order and security. Furthermore, given the nature of the impugned regulation, it is evident that the imposition of punishment for the imputed act is based on objective and reasonable grounds, which renders the contested provision necessary in terms of achieving the legitimate aim pursued.

In criminal law, the objective and subjective elements of an offence must coexist for an individual to be held criminally liable. In this regard, it is stipulated by the contested provision that the existence of information known by the perpetrator to be false is a prerequisite for the application of the provision. Additionally, such information must pertain to the country’s internal and external security, public order, or public health. It is also stipulated by the contested provision that for the imputed act to constitute an offence, the said information, which pertains to the country’s internal and external security, public order or public health, and is known by the perpetrator to be false, must also be publicly disseminated, potentially disrupting the public peace. The requirement that the false information be capable of disrupting the public peace is considered as one of the objective elements of the offence. In this regard, when evaluating whether an act constitutes an offence within the scope of the relevant provision, judicial authorities must substantiate its potential to disrupt public peace through evidence and/or facts. Lastly, the imputed act will constitute an offence, if it is committed by disseminating the information known by the perpetrator to be false, with the sole purpose of creating panic, fear or anxiety among the people. Accordingly, it is clear that the act defined in the relevant provision will not constitute an offence, if any of the aforementioned conditions are not met.

Furthermore, considering the nature and severity of the punishment prescribed for the basic form of the impugned offence, the aggravating factors based on the severity of danger, and the availability of appellate remedies, it has been concluded that the restriction imposed by the provision does not contradict the principle of proportionality. Therefore, the provision is compatible with the principle of proportionality.

Consequently, the contested provision has been found constitutional, and therefore, the request for its annulment has been dismissed.