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.
