Constitutionality Review

Ground for the Requests for Annulment

In the request lodged with the Constitutional Court, it has been maintained in brief that internet is of great importance for exercise of fundamental rights and freedoms; that blocking access to internet is directly associated with the freedom of communication; and that this provision is in breach of Article 22 of the Constitution for imposing a restriction on the freedom of communication without the approval of a judge.

The Contested Provision

The contested provision envisages that the TCP may ex officio order blocking access to internet content constituting the offence of obscenity.

The law was amended by the Decree-Law no. 671 and dated 15 August 2016. Despite the amendment, the provision is subject to review in its original form due to the fact that the original form of the rule is applicable to the case before the court making the request. 

The Constitutional Court’s Assessment

Examining the contested provision within the scope of the freedoms of communication and expression, the Constitutional Court has made, in brief, the following assessments:

It is beyond any doubt that internet, which has become widespread as a mass communication media and has been increasingly preferred over the conventional means, falls within the realm of the freedom of communication. However, it is also used for the purposes of committing an offence or facilitating the commission of an offence. Therefore, the internet clearly differs from conventional communication means such as telephone and telegraph, and all content on the internet cannot be considered to fall into the scope of the freedom of communication.

The freedom of communication safeguards the internet content or applications which are in the nature of or intended for communication or contact. However, it does not offer protection especially for internet content which merely serves for commission of offence or its facilitation. There is no unconstitutionality in enabling administration for blocking access to internet ex officio and without judge approval for the content serving to commit an offence or its facilitation.  

On the other hand, the assurance of approval of judge with regard to the freedom of communication covers internet sites or applications that is primarily used or intended for mass communication, such as social media, but nevertheless include criminal content as well. In other words, although the internet sites or applications used or intended for communication might include criminal content, they are subject to the constitutional safeguard that requires judge approval for restriction. Therefore, enabling the TCP to block access to internet sites or applications of mass media or communication without judge approval contradicts Article 22 of the Constitution, which requires that the order of restriction of communication by due authorities under law shall be submitted for the approval of the competent judge within twenty-four hours.  

In addition to the freedom of communication, blocking access to internet, which is also a means widely used for imparting, disseminating and receiving information and thoughts and for sharing comments, opinions and criticisms, is also directly associated with the freedom of expression.

The freedoms of communication and expression, which are safeguarded by Articles 22 and 26 of the Constitution, may be subject to restriction for the grounds specified in these articles, providing that such restriction complies with the requirements set out in Article 13 of the Constitution. As stipulated in Article 13, fundamental rights and freedoms may be restricted only by law without infringing upon their essence, and restrictions shall not be contrary to the requirements of the democratic order of the society and the principle of proportionality.

As regards the Article 13 requirement that fundamental rights and freedoms may be restricted only “by law”, a regulation must meet legality requirement not only with respect to the form but also with respect to the substance. As noted in many judgments of the Constitutional Court, the principle of legal certainty entails that laws must be clear, precise, understandable and impartial to the extent they would not cause hesitation and doubt both for individuals and the administration; and that they must not yield to arbitrary acts and actions by the public authorities. 

In the contested provision, it is merely set forth that the TCP may ex officio order blocking access to internet content on the ground of the offence of obscenity. It is not specified therein whether such order would be only limited to the relevant content, section and part or would extend to the whole of the web-site, or whether access thereto would be blocked gradually as stipulated in Articles 8/A and 9 of the Law. Thereby, the administration is vested, by virtue of this provision, with a power to block access to internet in a way that is indefinite in its scope and limits. As the contested provision, which is the basis for the order blocking access, fails to meet the requirements of being clear and precise, it does not comply with the safeguard provided in Article 13 of the Constitution that fundamental rights and freedoms may be restricted only “by law”.

For these reasons, the provision was found incompatible with Articles 13, 22 and 26 of the Constitution.