Evaluation of the Decision to Block Access to Ekşi Sözlük within the Scope of Freedom of Expression

Most recently, the Information and Communication Technologies Authority ("ICTA") blocked access to Ekşi Sözlük, one of today's largest internet communities. Although the access ban was canceled by the decision of the Ankara 4th Criminal Court of Peace, as a result of the objection to the decision, the Ankara 5th Criminal Court of Peace accepted the objection and finalized the decision to impose an access ban.

With the finalization of the decision to block access to Ekşi Sözlük, the management of Ekşi Sözlük is expected to make an individual application to the Constitutional Court. The Constitutional Court will evaluate whether the decision to block access to Ekşi Sözlük violates freedom of expression.

Ekşi Sözlük is an internet platform where participating authors can write their thoughts on certain words, concepts, events, and phenomena listed and presented to visitors in a dictionary style. As one of Turkey's most followed internet platforms, Ekşi Sözlük has created a unique culture over the years by mediating the interpretation of many socially influential events and informative content. Furthermore, the fact that the platform members create content with nicknames without revealing their real identities has allowed them to behave more comfortably and freely than in real life and to stand out from their social identities. As a result of this feature, the platform is seen as a source of information by a significant part of society. Still, it is also criticized by different segments of society in terms of the content shared.

In the statement made by the management of Ekşi Sözlük, the reason for the decision to block access was that Ekşi Sözlük writers gave false information to the public, tried to manipulate the public, and although the content-based access blocking decisions issued by the criminal judgeships of peace were fulfilled by the management of Ekşi Sözlük, the public order was affected by the fact that the public could not access accurate information during this period. The reasons given for the blocking of access to the website were also giving untrue information about the military and state institutions, especially in the aftermath of the earthquake, attempting to manipulate the public and portray the state as incapable, determining that there were posts aiming to create an environment of chaos among society segments, and the failure of the site administrators to react to false and slanderous posts, failure to ensure internal control, and failure of the Ekşi Sözlük administration to block harmful posts and comments. Therefore, the first thing that draws attention to the statement is that no specific content was cited to justify the decision to block access.

According to Article 8/A of Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications ("Law No. 5651"), the President of the ICTA may decide to remove the content or block access upon the request of the judge or the relevant ministry in cases where it is inconvenient to delay, based on one or more of the following reasons: protection of the right to life and the security of life and property of individuals, protection of national security and public order, prevention of crime or protection of public health.

The decision must be submitted to a criminal court of peace for approval within 24 hours of the decision. According to the mentioned regulation, the ICTA has taken this course of action because it is considered that the Ekşi Sözlük platform, which contains allegations of providing untrue information about the military and state institutions after the earthquake, attempting to manipulate the society and show the state as incapable, and creating an atmosphere of disorder among society segments, would disrupt national security and public order. However, it is also clear that there is a need to assess whether such an intervention is in line with the requirements of the democratic regime.

As clearly stated in the decisions of the Constitutional Court, the concept of the requirements of the democratic social order requires that restrictions on freedom of expression must be compulsory or exceptional measures and must be the last resort or the last measure to be taken. The necessity of a democratic social order means that a restriction must be aimed at meeting a compelling social need in a democratic society. Accordingly, it must be assessed whether a measure limiting a fundamental right and freedom meets a social need or is a measure of the resort. If, as a result of this assessment, the contrary conclusion is reached, it is clear that the measure applied cannot be considered by the requirements of the democratic social order.

When deciding to block access to a website, it is expected that the matter will be handled with sensitivity by acting with the awareness that this is an exceptional practice that should be used only in cases where a delay is inconvenient. However, in the decision to block access to Ekşi Sözlük, a case of undue delay was not established. The relationship between this situation and the reasons for protecting national security and public order was not fully revealed. No concrete justification was provided to justify this intervention. Therefore, as long as it is not demonstrated that the shared content is of such a severe nature as to justify the complete blocking of access to the website, and as long as the relevant content is not removed. These remedies are not exhausted. Undoubtedly, the interference in terms of freedom of expression will be permanent and will not be a proportionate interference.

Today, despite the importance of the internet within the scope of freedom of expression, it is a fact that some of the content produced on the internet poses individual and social risks; however, a democratic society requires that it will not be possible to be successful in combating these risks with access restrictions alone, and if it is possible to achieve the result expected to be achieved by blocking access by other means, a democratic society requires that alternative means should be tried first in the context of protecting fundamental rights and freedoms.

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