Constitutional Court ruling on access bans: To take effect in 9 months! A 'January 10' gift for journalists...

The Constitutional Court (AYM) has ruled for the annulment of Article 8/4 of Law No. 5651 on the grounds that the authority of the President of the Information and Communication Technologies Authority (BTK) to issue access bans and/or content removal orders violates the presumption of innocence, and Article 9, which allows for such orders, on the grounds that it restricts freedom of the press and freedom of expression. The AYM stated that the relevant articles are unconstitutional.

According to a report by Ali Safa Korkut from Free Web Turkey, the AYM, which consolidated the annulment applications filed by CHP Chairman Özgür Özel and Istanbul MP Engin Altay along with 27th Term MP Engin Özkoç in 2020, and the Tavşanlı Criminal Judgeship of Peace in 2022, ruled that the BTK President's authority to issue access bans and/or content removal orders, as well as the general practice of issuing such orders, is unconstitutional and ordered their annulment.

The AYM decided that the ruling will take effect nine months after its publication in the Official Gazette.

"BTK PRESIDENT ISSUES ORDERS BEFORE GUILT IS ESTABLISHED"

Accordingly, the AYM ruled that the provision introduced through Law No. 7253 as an amendment to Law No. 5651, which allows the 'BTK President to issue access bans and/or content removal orders based on their own determination,' violates the presumption of innocence and ordered the annulment of the article.

In its reasoning, the AYM stated that while various judicial and administrative measures can be taken against a person under suspicion of a crime, the prescribed measure must be a temporary one linked to the criminal proceedings process. The AYM noted that the BTK President issues access bans and/or content removal orders under this article in a manner disconnected from the criminal proceedings, and observed that these orders remain in effect even if the criminal proceedings conclude with a verdict other than a conviction.

"ACCESS BANS CONSTITUTE INTERFERENCE WITH FREEDOM OF EXPRESSION"

The AYM also annulled Article 9 of the same law, which allows for access bans and/or content removal orders on the grounds of "violation of personal rights," citing its unconstitutionality.

Stating that access bans and/or content removal orders restrict freedom of expression and freedom of the press, the AYM noted that the scope and limits of Article 9 are not clearly defined. The AYM stated that this creates a wide margin of discretion for judicial authorities and expressed that they have observed it is difficult to obtain results from appeals made against access bans and/or content removal orders.

Noting that issuing access bans and/or content removal orders against "violations of personal rights" does not offer a graduated method of intervention, the AYM said, "It is understood that this prevents access to the relevant content from within the borders of the country indefinitely from the date the decision is issued."

In this respect, the AYM stated that the article constitutes a severe interference with freedom of expression and the press, and noted that it does not contain the safeguards necessary to ensure that decisions are proportionate and in accordance with the requirements of a democratic society.

REMINDER OF PILOT JUDGMENT

In the decision published today, the AYM also recalled its pilot judgment issued on October 27, 2021.

In its decision dated October 27, 2021, the High Court had ruled that access bans imposed on news reports on websites by criminal judgeships of peace, based on Article 9 of Law No. 5651, constituted a "violation of freedom of expression and the press" and that the law needed to be amended.