Constitutional Court annuls 'access ban': Attorney Nursu Sıla Gürkan comments

The Constitutional Court (AYM) has ruled on an application for the annulment of certain articles of Law No. 5651, which allows for decisions to block access and/or remove content. The decision will enter into force nine months after its publication in the Official Gazette. Attorney Nursu Sıla Gürkan evaluated the content and significance of the decision for 12punto.

With the Constitutional Court's decision published in the Official Gazette, Article 9 of Law No. 5651 on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications has been annulled.

Article 9 granted individuals, legal entities, and institutions claiming that their personal rights were violated due to content published on the internet the right to apply directly to a criminal judgeship of peace to request the removal of said content and/or the blocking of access to it.

An examination of the Constitutional Court's decision shows that Article 9 of Law No. 5651 was annulled on the grounds that it violates Article 13 of the Constitution, which regulates the limits of restricting fundamental rights and freedoms, Article 26, which regulates the freedom of expression and dissemination of thought, and Article 28, which regulates freedom of the press.

Article 13 of the Constitution stipulates that fundamental rights and freedoms can only be restricted by law, for reasons specified in the Constitution, without touching upon the essence of the rights, and that such restrictions cannot be contrary to the letter and spirit of the Constitution, the requirements of a democratic social order and a secular Republic, and the principle of proportionality.

The annulled Article 9 appeared as a provision that restricted freedom of expression and dissemination of thought, as well as freedom of the press.

Because the article required criminal judgeships of peace to make quick decisions regarding the blocking of access to content alleged to violate personal rights without conducting an adversarial trial, a severe intervention in press freedom occurred, and unfair decisions could be rendered.

Since it was not possible to reach a decision on whether personal rights were truly violated within such a short time, it was often unclear on what basis the violation decision was made, and one was frequently faced with the situation of standardized decisions being issued independently of the concrete case.

It is clearly evident that the access blocking decisions issued under Article 9 not only constituted censorship in the press but also hindered the public's right to access accurate news.

News reports prepared in accordance with professional press principles for the purpose of informing the public were being removed via access bans in a short time by citing Article 9, and the public's right to access accurate information was being taken away.

Indeed, the Constitutional Court also emphasized in its decision that because the scope and limits of Article 9 of Law No. 5651 were not defined, a broad discretionary power was granted to judicial authorities, and that it was almost impossible to obtain results from appeals made against decisions issued under this article.

The lack of definition in the scope and limits of the article both led to a right granted by law being abused by certain individuals and institutions in line with their own interests and appeared as a severe intervention in press and expression freedom. In fact, these censorship decisions were used as a tool to intimidate and threaten press workers, giving rise to the danger of self-censorship.

While decisions on whether personal rights were violated in compensation lawsuits filed with the claim of violation of personal rights were made as a result of a comprehensive trial, the evaluation of the claim of violation of personal rights in as short a time as 24 hours and the issuance of an access ban clearly constituted a violation of the Constitution.

I believe an important step has been taken in terms of press freedom and the prevention of censorship in the press. Since the decision will enter into force in 9 months, this article will continue to be applied until October 2024.

This decision by the Constitutional Court, published in the Official Gazette right on the eve of the elections and on January 10, Working Journalists Day, could be a milestone in terms of preventing censorship in the press and for press freedom.

News Source: 12punto