On 11/10/2023, the Constitutional Court, with its decision numbered E.2023/172 in the file numbered E.2020/76, decided that Article 9 of the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications, titled 'Removal of Content from Broadcasting and Access Blocking' is unconstitutional and should be annulled. The annulment provisions will enter into force nine months after the publication of the decision in the Official Gazette dated 10.01.2024.
Clauses 1 and 3 of the annulled articles in question stipulated the following:
‘(1) The real and legal persons, institutions, and organizations claiming that personality rights are violated due to the content published on the internet may ask the content provider, or the hosting provider if they cannot reach the content provider, to remove the contents from the broadcasting by using warning method, and may also request to prevent access to the content by applying directly to the judge of the court of peace.
(3) Due to the contents of the publication made on the internet, judges may decide to remove the content and/or block access to the content mentioned in the scope of this article in the direction of the requests of those whose personality rights are violated.’
In the justification of the Constitutional Court's decision, the Constitutional Court stated that the relevant regulations restricted the freedom of expression and the publications within the scope of internet journalism by allowing the removal of the content of the publications made on the internet and/or blocking access to these publications.
As stated in the reasoning, pursuant to Article 13 of the Constitution, such a restriction must be made by law and must comply with the reasons for restriction set out in the Constitution, the requirements of the democratic social order, and the principle of proportionality. It is stated that the rules subject to the lawsuit do not envisage a gradual intervention method for the restriction of internet content against attacks on personal rights and that the restriction is indefinite. This situation constitutes a severe interference with the freedom of expression and press. In addition, it has been evaluated that the rules do not have the guarantees to ensure a proportionate decision in accordance with the requirements of the democratic social order.
Article 38 of the Constitution provides for the presumption of innocence. With the annulled article, the President of the ICTA (Information Technologies and Communication Authority) was authorized to decide to remove content or block access in the event of “reasonable suspicion” regarding certain offenses under the Turkish Penal Code. These offenses were: incitement to suicide, sexual abuse of children, drugs, supply of substances hazardous to health, obscenity, prostitution, gambling, illegal betting, and acts committed against Atatürk.
The Constitutional Court ruled that the regulations allowing the President of the ICTA to remove contents and to impose sanctions on “the relevant content, hosting and access provider” that fails to fulfill the order are unconstitutional and annulled. It was assessed that the decision of an administrative authority to take content off the air based on a criminal determination without a finalized court decision on the commission of acts defined as crimes in the criminal law, and the imposition of administrative fines in case of failure to implement this decision violates the presumption of innocence.
KESIKLI LAW FIRM
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