Critical 'Instagram' statement from the Istanbul Bar Association: 'BTK decision is unconstitutional'

The Istanbul Bar Association has issued a statement regarding the blocking of access to the social media platform Instagram.

In the statement, regarding the 'catalog crimes' cited by the BTK (Information and Communication Technologies Authority) as justification, it was stated: "It has not been explained for which action the platform committed a crime and/or on what grounds the access blocking decision was issued."

'IN AN ARBITRARY MANNER...'

The statement included the following expressions:

"Social network platforms are used by a wide segment of our country to access news and to express thoughts and opinions. At the same time, they are channels where many national and international brands develop advertising, marketing, and various commercial relationships. Decisions to block access to all such platforms create a domino effect, causing commercial grievances for many individuals and institutions.

In recent years, we have frequently witnessed the unlawful, unjustified, and arbitrary slowing down of access to all social network platforms across Turkey, or in some cases, the blocking of access entirely.

'ITS UNCONSTITUTIONALITY HAS BEEN ESTABLISHED'

Freedom of expression is clearly defined and protected under Articles 25 and 26 of our Constitution and Article 10 of the European Convention on Human Rights (ECHR). It has been clearly accepted in the decisions of the Constitutional Court (AYM) and the European Court of Human Rights (ECHR) that access to the internet and social network platforms has become indispensable in the current era for the exercise of freedom of expression, freedom of communication, and the right to access information, which are guaranteed by our Constitution and the ECHR, and that it is an essential element of these fundamental rights. Furthermore, Article 13 of our Constitution states that fundamental rights may be restricted by law in accordance with the principle of proportionality, without touching upon their essence.

On the other hand, in accordance with our Constitution and the United Nations Guiding Principles on Business and Human Rights, legal entities, i.e., companies, also have an obligation to respect human rights. In this context, social network platforms and internet service providers must also make maximum efforts to act in accordance with the law and be transparent in the face of demands for unlawful restrictions or blocks that disproportionately interfere with fundamental rights. At this point, no matter how lacking in transparency social network platforms may be, as the Republic of Turkey, we must make decisions that comply with the rights we provide to our citizens in the Constitution.

In addition, based on the Constitutional Court's decision dated 11/10/2023, numbered E.: 2020/76; K.: 2023/172, the BTK's authority to block websites ex officio has been established as unconstitutional through the annulment of the relevant legal provision. The insistence of an administrative institution on making a decision despite the provision being annulled by the Constitutional Court harms the principle of the rule of law. At the same time, it was stated in the access blocking measure announced by the BTK that the decision was taken due to catalog crimes. However, it has not been explained for which action the relevant platform committed a crime and/or on what grounds the access blocking decision was issued.

For all these reasons, the access blocking decision established by the BTK, the unlawfulness of which is established, must be immediately withdrawn to demonstrate that the institutions of the Republic of Turkey always act in accordance with the Constitution and laws and that the principle of the rule of law is never compromised. Apart from this, the process of seeking rights should be continued by making the necessary applications and complaints in the international arena due to the relevant social media platform's unilateral actions that are contrary to transparency principles."

News Source: 12punto