Events
Various news items about the applicants were published on the websites of national newspapers and some websites. The applicants’ requests to block access to these contents were rejected by the courts, and the applicants made individual applications to the Constitutional Court separately.
Allegations
The applicants claimed that their right to effective remedy in connection with the right to honour and reputation was violated due to the rejection of their requests to block access to the internet content that they claimed violated their personal rights.
Assessment of the Court
The Constitutional Court has examined in detail the procedure for the removal of the content and blocking access to the publication introduced by Law No. 5651 in various decisions since 2017, and ruled that this procedure is a protection measure and an exceptional way to achieve fast results in order to fight against crimes committed on the internet more effectively and to protect private life and personal rights in a fast and effective manner.
Within the framework of the established procedure, the Constitutional Court concluded in the pilot decision Keskin Kalem Yayıncılık ve Ticaret A.Ş. and others ([GK], B. No: 2018/14884) that Law No. 5651 does not have the basic guarantees for the protection of freedom of expression and press freedoms and decided to notify the legislative body of the arbitrariness for the solution of the structural problem.
As stated in the aforementioned pilot judgement, since the blocking of access envisaged by Article 9 of Law No. 5651 is a frequently used intervention tool, a large number of complaints alleging violation of the freedoms of expression and press are brought before the Constitutional Court through individual application.
However, it cannot be considered that the legal basis, which does not have basic guarantees, poses a problem only in terms of one of the two conflicting rights. The current mechanism, which does not have the possibility to examine the merits of the complaints and cannot provide an appropriate remedy when necessary, is far from being an effective remedy for persons who apply to the criminal judgeships of peace claiming that their personal rights have been violated due to internet broadcasting.
As a matter of fact, the concrete applications this time relate to the allegations of violation of the rights to honour and reputation of the applicants who could not obtain the protection they requested due to the rejection of their request to block access to the internet content.
In these applications, where the violation of personal rights is not clear enough to be understood at first glance, it has been observed that the determination of whether the allegations in the news are true and whether they violate the personal rights of the applicants by establishing a balance between conflicting interests cannot be carried out in an urgent manner with a non-contradictory examination and decisions made on the file.
Blocking access to content on the internet is a heavy intervention tool as it prevents access to that content within the borders of a certain country indefinitely from the date of the decision. It is a method that should not be used as long as harmful content on the internet can be combated with other methods.
On the other hand, in addition to the opportunities provided by the internet in the exercise of fundamental rights and freedoms, it also creates different ways of interference with fundamental rights and freedoms, private lives and moral integrity of individuals.
The Constitutional Court emphasised that, although the state cannot be imposed a positive obligation to conduct a conflicting trial in all cases and automatically due to the difficulties created by the internet environment, the state is obliged to establish a judicial system and an effective judicial supervision mechanism in cases where the constitution of a party is ensured, where these persons can have the opportunity to present their defences against the interference, including the presentation of evidence, and have the right to be heard and to a conflicting trial.
In this pilot judgment, the Constitutional Court, in order to eliminate the ongoing violation of the freedoms of expression and the press and its consequences and to prevent new similar violations, the Constitutional Court revealed the need to reconsider the current system currently operating in our country and stated that it is at the discretion of the legislative body to make legal arrangements as part of the state policy to be adopted regarding the organisation of the internet environment. It also recalled the minimum minimum standards that should be taken into account in the new legal regulations to be made in order to ensure that interventions in the online environment do not lead to violations of Articles 13 and 26 of the Constitution.
In the light of these assessments, it has been concluded from the examination of the present application that the problem not only leads to violations of freedom of expression but also fails to provide an effective protection against attacks on personal rights due to the lack of basic guarantees in Article 9 of Law No. 5651.
For the reasons explained above, the Constitutional Court held that the right to protection of honour and reputation and the right to effective remedy in connection with the right to protection of honour and reputation were violated.
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