The Judicial Protection of the Basic Rights at the Age of Internet:
The Example of the Turkish Constitutional Court *
Honorable President of the Constitutional Council of Kazakhstan,
Ladies and gentlemen,
It is a great pleasure for me to join you in this webinar symposium. I wish we could discuss this vital subject in a face-to-face platform, but unfortunately COVID 19 has once again forced us to meet through video conference.
Before starting my brief speech, I would like to congratulate the people of Kazakhstan for the 30th anniversary of the independence. It is my sincere wish that you will celebrate the future anniversaries of independence and long live together in a prosperous and happy Kazakhstan.
I would like also to express my deep gratitude to President Mami for hosting this symposium.
It is futile to explain how the Internet has radically changed the everyday life. There is no doubt that it provides numerous advantages to facilitate and enhance the quality of our lives. Just to give an example, it would be impossible to organize this webinar and exchange our views without the Internet. On the other hand, since the invention of the Internet we have faced formidable challenges including the legal ones.
Indeed, the Internet is a double-edged sword. It provides very effective platform for not only expressing and sharing views, but also for fraud, gambling, child abuse, terrorism, libeling and so on. Therefore, protection of fundamental rights requires us to regulate the use of the Internet in legal terms. However, the borderless and elusive nature of the Internet makes this regulation very challenging.
Nonetheless courts play a significant role in building a coherent case-law to protect individual rights and liberties at the age of Internet. In this regard the Supreme or Constitutional Courts/Councils have faced difficulties to deal with mainly two group of cases arising out of the Internet and in particular social media.
First group of cases involves state interventions in various forms such as access ban and different sanctions to be imposed on the social media corporations as well as the users. In these cases, the main task of courts is to protect freedom of expression and/or the right to respect for private life. I use the term “and/or” deliberately, simply because in most of these cases two fundamental rights may compete with each other.
Second group of cases involves legal questions which are directly related to the horizontal effect of human rights. As we all know, the social media corporations themselves have imposed certain restrictions on their users such as blocking or suspending their accounts. These interventions raise the question of protecting freedom of expression of individuals vis-a-vis the social media corporations.
The bulk of the complaints before the Constitutional Court of Turkey are within the scope of the first group. That is why I want to mention a few judgments of the Court to give you an idea about how the Turkish Constitutional Court has been tackling this hard job of protecting rights and balancing among competing rights at the age of the Internet.
In its relevant judgments TCC has frequently emphasized that the Internet and social media played a crucial role in democratic societies as widely used and efficient medium of the freedom of expression. Given this function of the Internet, the Court has stated that the authorities have to act carefully and responsibly in regulating the Internet.
In both areas of constitutional review and individual application, the Court examines the alleged restrictions of the fundamental rights and freedoms relating to the Internet on the basis of the criteria laid down in Article 13 of the Constitution, which provides a three-level test. First of all, an act of parliament is necessary to impose restrictions on fundamental rights and liberties. Secondly, the restrictions must pursue certain legitimate aims such as protection of public security and the rights of others. Finally, the restrictions must be proportionate and necessary in a democratic society. In this regard, following the footsteps of the European Court of Human Rights, the TCC has invoked the conceptions of “pressing social need” and “proportionality” in deciding whether an impugned restriction constitute a violation of rights and liberties.
The Constitutional Court makes it clear that the existence of a formal act of parliament is not sufficient to restrict rights and liberties. The law must also meet substantive qualifications such as clarity, certainty and foreseeability. Therefore, in cases where the access ban is prescribed by law, the scope and procedures regarding the use of such measure should be defined with sufficient clarity.
In the Twitter case the TCC found a violation of the freedom of expression by the public authority insofar as a blanket ban of Twitter was not compatible with the law. The Court spelled out that the relevant law did not authorize the administrative body to block access to an entire website or social media platform; rather, it only permitted blocking of specific URL addresses upon a judge order.1
Likewise, in its Youtube judgment, the Court found a violation of the applicants’ freedom of expression. Referring to the case-law of the Strasbourg Court, TCC this time questioned the quality of the law and reached the conclusion that the intervention did not have a clear and distinct legal basis and was not foreseeable for the applicants. The Court therefore found that the relevant provision of the Law on Internet failed to meet the requirement of legality.2 The Court later annulled that legal provision on the same basis in a concrete norm review case.3
Relatively recently the Plenary of the Constitutional Court found a violation of the freedom of expression in the individual application lodged by Wikimedia Foundation. In this case, access to Wikipedia was blocked due to the contents available on two URL addresses. The Court pointed out that the blocking of access to Wikipedia in Turkey was an interference not only with the freedom to disseminate information and thoughts enjoyed by the applicant in its capacity as the content provider but also with the Turkish users’ right to receive information and thoughts.
According to the Constitutional Court the inferior courts failed to provide relevant and sufficient grounds to demonstrate that the ban on access to Wikipedia was justified by a pressing social need. Having considered the permanent nature of this blanket ban on access to the entire website, the Court declared that such restriction on freedom of expression was disproportionate and incompatible with the requirements of a democratic society.4
In some other cases the Court found violations of the right to respect for private life of individuals. For instance, in a recent case where the applicant’s personal data such as address, was disclosed by the mayor of Ankara through a social media account, the Court found a violation of the right to respect for private life.5 The Court also found violations of the right to respect for private life in cases where the state or private companies monitored the e-mails of the applicants without their consent and terminated their employment contracts on the basis of the contents of these e-mails.6
In adjudicating social media related cases the judges are bound to strike a fair balance between competing rights, namely freedom of expression and the right to protection for honor and dignity. This is perhaps one of the most difficult tasks in the entire sphere of judicial decision making.
Like many other courts, the TCC has acknowledged that the rights may sometimes conflict each other. If such conflict arises “a reasonable balance should be struck between competing rights and both should be afforded the necessary protection”.7
In fact, the test of balancing turns out to be a test of justifying the intervention in the freedom of expression. The TCC points out that in striking a fair balance the courts must consider, among others, the concrete circumstances of the case, the context of the words used, and the proportionality of the penalty imposed as a result.8
In a recent case the applicant, a Turkish citizen of Armenian origin and a journalist, was ordered to pay compensation for his remarks targeting a politician on social media. The inferior courts decided that the applicant had insulted the complainant and his words went beyond the scope of freedom of expression. The TCC disagreed and found a violation of the freedom of expression.
According to the Court the words used by the applicant were evaluated out of context without considering the fact that the applicant had used them in response to the remarks previously made by the complainant against the Armenian community of which the applicant has been a member. Furthermore the TCC emphasized that politicians and public officials are expected to be more tolerant to criticisms due to their position. 9
In conclusion, I would like to say that as the constitutional justices we have to protect rule of law, rights and liberties and other values of individuals against the threats of the Internet era. There is no doubt that these threats mainly stem from unlawful and disproportionate interventions of governments, social media corporations and the misuse of the Internet.
I must note that the intervention of the Internet companies is increasingly becoming topical. The terms like “tweetocracy” reveal emerging power of international social media corporations. Therefore, it is not premature to say that judges will have to tackle the issue of protecting rights of individuals against these corporations.
All in all, more than any other public institutions, constitutional courts or councils are responsible for securing and maintaining justice, which lies at the heart of all human values.
Let me end my speech by citing the words of great Kazakh poet and thinker Abay. In his “Thirty-Seventh Word”, Abay says that “justice is the mother of all virtues.”10
Thank you for your attention.
|Prof. Dr. Zühtü ARSLAN|
|The Constitutional Court of the Republic of Turkey|
* Speech delivered at the International Symposium (Webinar) on “The Internet Era: The Rule of Law, the Values of Person and the State Independence”, Organised by (online) the Constitutional Council of the Republic of Kazakhstan, 27 August 2021.
1 Yaman Akdeniz and others, App. No: 2014/3986, 2/4/2014, § 49.
2 Youtube LLC Corporation Service Company and others [Plenary], App. No: 2014/4705, 29/5/2014, §§ 56-57.
3 AYM, E. 2015/76, K. 2017/153, 15/11/2017, §§ 31-33.
4 Wikimedia Foundation Inc. and others [Plenary], App. No. 2017/22355, 26/12/2019.
5 Aylin Nazlıaka (2), App. No: 2018/24439, 15/6/2021.
6 Tevfik Türkmen [Plenary], App. No: 2013/9704, 3/3/2016; E.Ü. [Plenary], App. No: 2016/13010, 17/9/2020.
7 AYM, E. 2014/101, K.2017/142, 28/9/207, § 49.
8 Oğuz Demirkaya, App. No. 2018/15033, 18/5/2021.
9 Hayko Bağdat (2), A. No: 2019/4585, 26/5/2021.
10 Abay (İbrahim Kunanbayev), Çev. E.Ayan ve Z.Kibar, (İstanbul: Türk Edebiyatı Vakfı, 2020), p. 482.