Turkey: The Constitutional Court's Recent Decision On The Freedom Of Expression And The Freedom Of The Press On The Internet

Last Updated: 17 December 2018
Article by Gönenç Gürkaynak Esq, İlay Yılmaz and Burak Yeşilaltay
Most Read Contributor in Turkey, September 2019

The Turkish Constitutional Court recently ruled (in its decision of July 18, 2018, No. 2015/15242) ("Decision") that the access ban of a news article on a newspaper's website violated the freedom of expression and the freedom of the press1.

The application was filed before the Court on August 8, 2015, by three applicants ("Applicants"). These applicants comprised the news editor of the relevant newspaper's website, the journalist who had drafted the news article, and a well-known news agency that was the publisher of a mainstream newspaper and the owner of the website.

According to the Decision, the relevant news article concerned the owners of luxury houses in a building complex that had been built by the municipality for an urban transformation project. The Decision stated that the article had criticized the government and had alleged that the project was not in accordance with the applicable urban transformation regulations. The article had also claimed that a governor had bought a house in the building complex at a low price, along with other politicians who were members of (or had connections to) a particular political party. Furthermore, a connection had been made in the news article between the low purchase price paid by the governor and an earlier investigation led by the governor as a chief civil inspector that was related to the purchase of a piece of land by the company that later built the houses in question. According to the news article, the governor had closed the inquiry by stating that there was no need to investigate, and this action was allegedly related to his later purchase of the luxury houses at below-market prices.

According to the Decision, after the news article was published, the governor filed a complaint before a criminal judgeship of peace and requested an access ban decision under Article 9 of the Law No. 5651 ("Internet Law") by claiming that the content/allegations in the news article had harmed his reputation and dignity. The governor also argued that the allegations contained in the news article did not reflect the truth. The request was granted by the criminal judgeship of peace, who declared that the limits of the right to inform the public had been exceeded in the case of this particular news article.

The Applicants filed an objection against the judgeship's decision and their appeal was rejected on July 21, 2015, by the higher court hearing the case, and the access ban decision thereby became final and binding. As the Applicants' ordinary legal remedies had been exhausted, they filed an individual application before the Constitutional Court on August 31, 2015, by claiming that their rights to freedom of expression and freedom of the press had been violated.

The Constitutional Court first evaluated the standing criteria and rejected the news agency's application. The Court stated that the news agency had not filed an appeal against the criminal judgeship of peace's decision, and thus had failed to exhaust its ordinary and domestic legal remedies prior to applying to the Constitutional Court. However, the Court found the other applicants to have standing.

The Constitutional Court then proceeded to evaluate the access ban procedure under Turkish law, and noted that access ban decisions based on the Law No. 5651 should only be granted in urgent cases indicating the existence of a "prima facie violation." In other words, the Court stated that such access bans should only be granted when the violation is apparent on its face, without the need for a detailed examination and the Court cited one of its earlier decisions, Ali Kidik Application, a case involving nude pictures or videos of an individual2. According to the Constitutional Court, an individual has the opportunity to file a lawsuit before civil or criminal courts, since, in the present case, when there is detailed information in order to determine whether the content of the news article reflected the truth and whether the content in question harmed the reputation and dignity of the governor.

The Constitutional Court indicated that the criminal judgeship of peace had failed to provide a convincing rationale for its decision regarding the urgent need to access ban the news article by showing or proving the prima facie violation. The Constitutional Court further stated that the reasoning of the criminal judgeship of peace was not relevant or sufficient to access ban the news article in question. The Constitutional Court also noted that the governor had other (and more effective) remedies he could have sought, such as filing a lawsuit before civil or criminal courts, instead of obtaining an access ban decision from the criminal judgeship as a preliminary injunction, which was ordered for an indefinite period of time.

Consequently, the Constitutional Court ruled that the news article had aimed to contribute to the proper functioning of a democratic society by discussing the (mis)use of public resources, and thus should be protected under the freedom of expression and the freedom of the press, and that access banning the contents was in violation of the freedom of expression and of the press, which are protected under Articles 26 and 28 of the Turkish Constitution. The Constitutional Court granted the applicants' individual application by stating that the informative value of the news article published on the newspaper's website was high and that it contributed to a discussion concerning the public interest.

In conclusion, the Constitutional Court decided that: (i) the application of the news agency was not admissible since all legal remedies had not been exhausted, (ii) the applications of the other applicants, which were based on claims regarding the violation of the right to freedom of expression and the freedom of the press, were rightful and admissible, (iii) a copy of the order would be sent to the relevant criminal judgeship of peace to remedy the consequences of the violation, and (iv) each applicant would be paid 4,000 Turkish Lira, in the form of non-pecuniary damages.

Footnotes

1 Official Gazette, Presidency of the Turkish Constitutional Court, decision dated July 18, 2018http://www.resmigazete.gov.tr/eskiler/2018/09/ 20180925-6.pdf (accessed November 11, 2018)

2 The Presidency of the Turkish Constitutional Court, decision dated 26.10.2017 http://www.anayasa.gov. tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/bir eyselbasvuru/detay/pdf/2014-5552.pdf (accessed November 11, 2018)


This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2018. 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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions