Individual Application

The Facts

The applicants are a reporter, owner and publisher of a national newspaper. In the issue of the newspaper, dated 2 October 2013, an article titled “They made the daughter of a martyr cry! (Şehidin kızını ağlattılar!)”, accompanied by photos of the plaintiff (teacher), was published. The said article reported that a school girl at the 10^th grade, who was wearing headscarf, had been subjected to oppression and persecution.

The action for compensation brought by the plaintiff against the applicants on the ground that the former’s personal rights had been damaged due to the impugned article was dismissed by the civil court. On appeal, the regional court of appeal (“appellate court”) awarded compensation at the amount of 5,000 Turkish liras jointly and severally against the applicants.  

The Applicants’ Allegations

The applicants maintained that their freedoms of expression and the press had been violated as they had been ordered to pay compensation due to the article published by them in a national newspaper.  

The Court’s Assessment

The appellate court concluded that the expressions in the impugned article “Those irresponsible show hostility towards the persons wearing headscarf in a way revealing their hatred and animosity, merely for self-aggrandisement. Here is a new case… (Bazı kendini bilmezler sırf egolarını tatmin etmek için kin ve nefretlerini kusarcasına baş örtülülere karşı düşmanlık yapıyorlar. İşte yeni bir örnek daha…)” did not fall into the scope of the right to criticise and freedom of expression; and that the publication of the plaintiff’s photo along with the impugned article had created a false impression that she had been strictly opposed to religion and headscarf. Considering the article as a whole, the appellate court held that it was not compatible with the apparent truth and amounted to an attack towards the plaintiff’s personal rights.     

One of the basic issues relied on by the appellate court in ordering compensation is the untrue nature of the claims raised in the impugned article that the plaintiff teacher had misbehaved her student for wearing headscarf at the school and that the student had been subjected to unfavourable attitudes on account thereof. In consideration of the case as a whole, it has been considered that the witness statements in support of the claims that the student had been subjected to severe pressure and threats -whether reflecting the truth or not- for wearing headscarf at the school were relied on in the article, which was an indication that the journalist had acted in line with his professional responsibilities; and that these factual claims were neither contrary to the apparent truth nor unfounded.

By the amendment made to the regulation on the dressing of the students at the schools affiliated to the Ministry of National Education, students studying at secondary and high schools have been allowed to wear headscarf at schools as from 27 September 2014. During the period prior to this amendment, it was a hotly debated issue whether students of that age could attend the school with a headscarf. These debates caused considerable public concern.  The subject matter of the impugned article was pertaining to a matter which caused sensitivity among a large part of the society in a recent period prior to the said amendment.

It may be acknowledged that the expressions in the article were offensive for the plaintiff. However, the Court is of the opinion that notably public officers should show more tolerance when exposed to criticism regarding their acts and actions. To ensure participation of the citizens in decision-making processes by making the public officers’ acts and omissions subject to a close scrutiny is a sine-qua-non requirement of tolerance in a democratic society. In this sense, the mere severe nature of an expressed thought, its involving a harsh criticism towards authorities, its expression by a harsh language and even its unilateral, controversial and subjective nature do not exclude it from the protection afforded by the freedom of expression.

It has been considered that the expressions examined by the appellate court amounted to a severe criticism towards the opposing attitude of teachers against a student wearing headscarf at the school and aimed at attracting attention to a debate on a matter of public interest. It has been further observed that the severe criticism directed against the teacher in the article resulted from her own conducts as it has been revealed that she had warned the student, for her wearing headscarf at the school, in front of the other school-mates; and that therefore, the expressions in the said article did not constitute an unfounded attack.

Despite these findings, the appellate court, without taking into consideration the conditions of the material time, the context and factual basis of the impugned expressions, extracted the impugned expressions from the context, examined them without considering the probability that they might have had sufficient factual basis and ultimately awarded compensation against the applicants.

Regard being had to the conclusions reached by the Court and the decision of the appellate court as a whole, it has been observed that the appellate court failed to strike a fair balance between the applicants’ freedom of expression and the plaintiff’s right to honour and dignity. The grounds relied on by the appellate court in adjudicating the case to the detriment of the applicants were not found appropriate and sufficient. Nor were the restrictions imposed on the applicants’ freedoms of expression and the press safeguarded respectively under Articles 26 and 28 of the Constitution considered to meet a pressing social need.

Consequently, the Court has found violations of the freedoms of expression and the press.