Turkey: The Constitutional Court's Decision on the Freedom of the Press and of Expression Regarding the Contents Posted on a News Website

Last Updated: 7 June 2017
Article by Gönenç Gürkaynak Esq and İlay Yılmaz
Most Read Contributor in Turkey, September 2019

The owner of the website "borsagundem.com" ("Applicant") applied to the Constitutional Court for the annulment of Istanbul 2nd Criminal Court of First Instance's decision ("Court"), which had decided to impose an access ban on 18 pieces of content published on this website. The Applicant argued that banning access to the contents of its website constituted a violation of the freedom of the press and the freedom of expression. Furthermore, the Applicant stated that its right to a fair trial had also been contravened, since the Court had not made a proper and sufficient evaluation of the content in question, had not taken the statements of the Applicant, and declined to provide the reasoning underlying its decision.

In order to provide a brief background, the facts of the case can be summarized as follows: A person who was the subject of the news articles published on the website "borsagundem.com" applied to Istanbul 5th Criminal Judgeship of Peace for the removal of the news related to him from the website, claiming a violation of his personal rights. The 5th Criminal Judgeship of Peace decided that the content in question did not violate his personal rights and rejected the request for removal. Upon rejection, the Court reviewed the objection of the requesting party, partially agreed with the objection and decided to ban access to 18 out of 25 contents, reasoning that these contents violated the personal rights of the requesting party. The Applicant appealed this access ban decision to the Constitutional Court.

One of the news articles subject to the access ban decision reported that two brothers were tried in the court for being members of an organization that provided fraudulent guidance on stocks.

The Constitutional Court, after further review, decided to grant the Applicant's request, based on the fact that the Applicant's claims regarding the violation of the freedom of the press and the freedom of expression were not groundless.

According to the Constitutional Court, the freedom of the press includes the publication and distribution of thoughts, ideas, information, news and criticism and the freedom of the press and the freedom of expression are vital for a democracy. It also asserted that the press has a duty to convey to the public every matter that includes or confers a public benefit and that it is not the duty of judicial authorities to determine the methods used by the press for reporting the news.

The Constitutional Court declared that access banning the news articles on the website of the Applicant undoubtedly constituted a violation of the freedom of the press and of expression. It further stated that, according to Articles 26 and 28 of the Constitution, the freedom of expression cannot be interfered with or restricted unless such a restriction is allowed and set forth by existing legislation and unless there is a legitimate interest that is stipulated under the relevant articles of the law. The Constitutional Court also stated that a determination should be made as to whether the restriction on the freedom the of press and the freedom of expression is in compliance with the conditions stipulated under Article 13 of the Turkish Constitution and whether or not the access ban decision is necessary and appropriate in a democratic society. It further noted that if a restriction on the freedom of the press or of expression does not satisfy a specific need or if it is not used as a last resort, then it cannot be viewed as an injunction that complies with the requirements of a democratic society.

The decision also noted that some of the news articles subject to the access ban decision included details of an official written accusation by the Public Prosecutor's Office and that some of them referred to civil lawsuits that had been initiated against certain people on the basis of this official written accusation. Therefore, the Constitutional Court concluded that the contents subject to the access ban decision could not be said to include any defaming statements and that they had a factual basis.

The Constitutional Court also indicated that even though the Court had stated that some of the statements on the news website were in violation of personal rights, it had not specifically identified the contents that violated personal rights and that the Court's decision did not provide a sufficient discussion of its reasoning.

The importance of protecting stock prices from manipulation and providing transparency in the stock market were also mentioned in the Constitutional Court's decision. Therefore, the Constitutional Court argued that, even though the person subject to these news articles became a target for criticism, the fact that the news articles subject to the application are related to stock market and that these news articles may have effect on the stock market should also be taken into consideration.

In light of the foregoing, the Constitutional Court, in its decision of 16 February 2017, stated that banning access to these news articles published on the website of the Applicant was not a proper and necessary restriction of the freedom of the press and determined that the access ban violated the freedom of the press and the freedom of expression, in contravention of the rights set out under Articles 26 and 28 of the Constitution.

This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in June 2017. A link to the full Legal Insight Quarterly may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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