Reasoning for Constitutional Court's censorship law ruling announced: 'It will bring the debate on reality with it'

The Constitutional Court (AYM) has published its reasoned decision regarding the regulation on "publicly disseminating misleading information (Turkish Penal Code 217/A)," for which it rejected the annulment request after deliberation on November 8.

In the decision, which was passed with a 9-to-6 vote, Zühtü Arslan, Hasan Tahsin Gökcan, Engin Yıldırım, Emin Kuz, Yusuf Şevki Hakyemez, and Kenan Yaşar dissented. By casting dissenting votes, they argued that the article added to the Turkish Penal Code (TCK), which stipulates a prison sentence of 1 to 3 years for disinformation, should be annulled.

The AYM conducted its evaluation within the scope of 'limitation of fundamental rights and freedoms (Article 13)' and 'freedom of expression and dissemination of thought (Article 26).'

According to the report in Bianet; the court did not deem it necessary to conduct an examination regarding the 'qualifications of the republic (Article 2),' 'freedom of thought and opinion (Article 25),' 'freedom of the press (Article 28),' and 'principles regarding crimes and punishments (Article 38)' as requested in the CHP's application.

"IT HAS BEEN OBSERVED THAT IT IS REGULATED CLEARLY AND PRECISELY"

In its reasoned decision, the AYM, which defended that the regulation is in accordance with the Constitution, stated, "It has been observed that the material and moral elements of the crime, the nature and amount of the sanction related to the crime, and the qualified states of the crime are regulated clearly and precisely in the rule without leaving any room for hesitation, and in this respect, it is understood that the rule meets the requirement of legality."

It then engaged in a discussion on freedom of expression. It argued that freedom of expression constitutes one of the main foundations of a democratic society, which is an essential condition for the progress of society and the development of individuals:

A democratic society develops with the existence of free and original thoughts. The existence of free and original thoughts is only possible by ensuring a healthy flow of information. With the effect of technological developments, the speed of information dissemination has increased significantly today. Although this situation carries many positive elements, the replacement of truths with false information negatively affects the formation of original opinions in individuals.

"In this respect, it is clear that punishing those who publicly disseminate false information regarding the country's internal and external security, public order, and general health with a custodial sentence, solely with the intent to create anxiety, fear, or panic among the public, will contribute to the purpose of protecting public peace and thereby preventing the disruption of public order. In this respect, it is understood that the rule has a legitimate purpose aimed at protecting and ensuring public order and security."

In its reasoned decision, the AYM argued that false information could jeopardize important public interests related to Turkey's internal and external security, public order, and general health.

Stating that false information does not contribute to public debate, the AYM assessed that the regulation is aimed at meeting a compelling social need.

ARSLAN'S STATEMENT ON PRISON SENTENCE

AYM President Zühtü Arslan, along with five other members, filed a dissenting opinion to the decision and wrote an 18-article dissenting opinion.

Arslan argued that the article imposes a limitation on freedom of expression protected under Article 26 of the Constitution. He emphasized the uncertainties and ambiguities in the law.

Arslan's dissenting opinion is as follows:

Freedom of expression can be limited by law for reasons such as the protection of public order and public security, as stated in the second paragraph of Article 26. However, this limitation should not touch the essence of the right and must be in accordance with the requirements of a democratic social order and the principle of proportionality.

There is almost only one aspect in the rule subject to the case that is concrete, specific, and foreseeable, and that is that the prescribed prison sentence is between one and three years. Apart from this, the elements of the crime and the required intent are entirely abstract and open to interpretation and subjective evaluations.

At the forefront of these is the phrase 'false information.' The uncertainty here is twofold. First, the term 'truth' expresses a situation that is difficult to determine by its nature. Second, the field of information whose 'falsity' is to be determined is regulated in a very broad manner. All information related to the country's internal and external security, public order, and general health is within the scope of the crime. Considering that these concepts are elastic and open to interpretation, it will be understood that the dissemination of almost any kind of information is included in the scope of the crime.

All these uncertainties in the rule subject to the case, which are capable of leading to arbitrary and unpredictable applications, mean that the interference with freedom of expression does not meet the requirement of legality.

The democratic social order requires that words that are disliked, or that are shocking and disturbing to a segment of society, also be protected within the scope of freedom of expression. The rule subject to the case is a regulation that is quite capable of preventing the sharing of information that is found to be disliked and disturbing on the grounds that it is 'false' and of serving a deterrent function in this regard.

The rule will inevitably bring with it a control over 'reality,' and in this context, a debate over whether the information subject to the crime that is publicly disseminated is 'true.' It should not be forgotten that throughout history, the greatest justification for those who suppress thought has been the claim of 'truth.' Those who think they possess the magic sphere of 'truth' have been able to accuse those who do not think like them of being 'enemies of truth' or 'heretics.' In various times and places, in the name of 'truth,' the defense of 'false' and 'misleading' information and views could be banned, and those who disseminated them could be punished in the harshest way.

The concept of 'democratic social order' included in Article 13 of the Constitution requires social and political pluralism that serves the coexistence of different views and thoughts. The protection of this pluralism depends, first and foremost, on the absence of a 'monopoly on reality' supported by public power.

It must be stated that the greatest obstacle to pluralistic thought, which is the foundation of a democratic society, is a monolithic approach. Wittgenstein, one of the greatest philosophers of the last century, expressed the drawback of this approach very beautifully with the words, 'The main cause of philosophical disease is one-sided diet, that is, feeding one's thought with a single type of example.'

As a result, the rule subject to the case has created an abstract danger crime that limits freedom of expression with concepts that are very difficult to define and apply to concrete events. It is also clear that the rule, which stipulates a prison sentence of up to three years, will have a chilling effect on those exercising their freedom of expression. In this form, it cannot be said that the rule corresponds to a compelling social need and is therefore necessary in a democratic social order.

For the reasons explained, I do not agree with the majority's decision to the contrary, as I believe that the rule requested to be annulled is contrary to Articles 13 and 26 of the Constitution.