The Turkish Constitutional Court (“Court”) annulled paragraph 12 of Article 77 of the Consumer Protection Law, which granted the Advertisement Board the power to partially or entirely block access to websites containing unlawful advertising content. The relevant rule was considered to be unconstitutional pursuant to the Court’s decision dated 13 September 2023 and numbered 2022/70 E. - 2023/152 K.
In its decision, the Court ruled that the scrutinized legal rules do not meet the necessity principle, which is the sub-principle of the proportionality principle that is one of the elements required to be satisfied under the Constitution for a limitation of right to be constitutionally compliant. Hence, the Court found that the subject rules are contrary to Articles 13, 26 and 48 of the Constitution.
Pursuant to the decision, the provision stipulating that "In addition to these penalties, if the violation is committed on the Internet, the Advertisement Board may decide to block access to the publication, section, part (in the form of URL, etc.) of where the violation occurred. However, in cases where it is technically impossible to block access to the violating content or where the violation cannot be prevented by blocking access to the relevant content, the Advertisement Board may decide to block access to the entire website where the violating content is placed." was annulled pursuant to their being considered unconstitutional. Since the legal gap, that might arise due to the annulment of the subject rules, is deemed to damage public interest, it has been decided that the Court’s decision will enter into force on 27 July 2024.
The annulled provision was entered into force on 1 October 2022. In the parliamentary working reports prepared with respect to the amending law proposal, the legislative motive for introducing the amended administrative sanction mechanism by inclusion of blocking access power was indicated as the need to provide consumers with stronger protection tools and the need to restructure administrative sanctions taking into account the seriousness of the violating act, fault degree and economic status of the wrongdoer and following the proportionality and deterrence principles.
In principle, the annulled provision prescribed a staggered administrative sanction mechanism. According to the annulled provision, the power of the Advertisement Board to block access to an entire website would not arise unless it was technically impossible to partially block access to the relevant content or partial access blocking would not suffice to prevent the violation. In other words, the Advertisement Board’s power to block access to the entire website was subject to the specific conditions set forth under the law. In practice, it was observed the Advertisement Board thoroughly dealt with enforcing the annulled provision and did not tend to entirely block access to websites containing violating content. Instead, in such cases, the Advertisement Board first reached out to advertisers of the complaint content with request for explanatory information and other proof, and primarily imposed the lighter sanction of blocking access to part or section of the relevant publication where the violating content was placed, rather than automatically blocking access to the entire website.
Nevertheless, it is assumed that the fact that sub-conditions triggering the Advertisement Board’s power to block access to the entire website, namely, “technical impossibility to partially block access to the relevant content” and “insufficiency of blocking access to the relevant content for prevention of the violation” were not precisely substantiated under the law, and the risk of unpredictability arising from the fact that limits of the Advertisement Board’s power were not clearly and comprehensively established thereunder had an impact on the Court’s rationale to annul the subject rules. It is worth mentioning that the Court did not rule that the mere fact that the Advertisement Board was equipped with the power to block access to websites was unconstitutional per se, however, the Court concluded that the structure of the subject administrative sanction was not in compliance with proportionality and necessity principles. If the legislative authority intends to enact a similar administrative sanction mechanism with the inclusion of blocking access power, it could be sensible to establish a more substantiated balance between the principle of protecting consumers and other constitutional freedoms and to restructure the administrative sanction mechanism taking into account proportionality and necessity principles as addressed in the Court’s decision, by simultaneously maintaining the effective appealing mechanisms against Advertisement Board’s decisions as previously conferred under the annulled rules.