The Constitutional Court found that some amendments introduced to the Law no. 5651 on Regulation of Publications on the Internet and Combatting Crimes Committed by Means of Such Publication (“Internet Law”) are unconstitutional in accordance with its decision dated 11.10.2023 and numbered 2020/76 E. and 2023/172 which was published in the Official Gazette dated 10.01.2023 and numbered 32425.
Evaluations on Provisions Found to be Unconstitutional
Powers Granted to the President of the Information and Communication Technologies Authority
The President of the Information and Communication Technologies Authority (“ICTA President”) was granted the power to “give content removal decision” in addition to its existing power to “block access” with respect to internet publications constituting the crimes listed in the catalogue under Article 8/1 of the Internet Law. The relevant amendment was made in Article 8/4 of the Internet Law and entered into force as of 31.07.2020. Moreover, the amendments introduced to Article 8/11 provided the ICTA President with the power to impose the administrative fine in case of failure to fulfill the content removal and/or access blocking decision per the provisions of the Internet Law against the “relevant content and hosting provider” in addition to the “access provider”.
Having examined unconstitutionality claims related to the relevant amendments, the Constitutional Court has concluded that the relevant measure is indeed a final measure detached from the criminal proceedings and is applied based on the determination of the ICTA President regarding the commitment of the suspected crime instead of a preventive / interim measure. The Court found that the administrative measure in question may not be reviewed and re-evaluated during the criminal investigation process to be initiated based on the crime which should be the ground of the administrative measure. The Court also found that the imposed administrative measure remains enforceable even if the proceeding results in a judgement other than a conviction based on guilt. As per the Court’s decision, constitutional guarantee securing that one shall not be treated as a criminal without a final court judgment about guilt of he or she may be meaningless.
As a result, the Court concluded that constituting a final measure to be imposed pursuant to an administrative authority’s determination with respect to commitment of a crime, content removal decision, which may be given by the ICTA President, violates the presumption of innocence in the absence of a final court decision about alleged crime. Thus, the Court annulled the relevant amendments as they are considered unconstitutional.
Pursuant to the Constitutional Court’s annulment decision, the ICTA President’s power to remove contents with respect to publications constituting the certain crimes listed under Article 8/1 of the Internet Law were revoked. However, the ICTA President’s power to block access with respect to publications constituting the relevant crimes remain in force.
Similarly, since Article 8/A of the Internet Law is still in force, the ICTA President is still authorized to remove contents or block access with respect to the internet publications upon request of the President of the Republic of Turkey or the relevant ministries in cases where there is imminent danger of delay due to the need of protection of the right to life, life and property, protection of national security and public order, prevention of crime or protection of public health.
Applications Based on Allegations about Violation of Personal Rights
Article 9 of the Internet Law was allowing individuals, institutions and organizations (claiming that their personal rights have been violated due to a publication made on the internet) to apply to the relevant content provider or to the relevant hosting provider when they cannot reach the content provider. Accordingly, the relevant individuals could request for removal of the relevant content through a takedown notification. They could also directly apply to the criminal judge with request for removal of the content and/or access blockage for the content. As per the relevant clause, criminal judges were also authorized to render content removal and / or access blocking decisions.
In the application subject to the review of the Constitutional Court, it was claimed that the amendments introduced to Article 9 failed to provide sufficient guarantees to prevent public authority’s arbitrary interventions with fundamental rights and freedoms, that the rules restricted the freedom of expression and the press in a disproportionate manner, and that enforcement of the rule in question caused the emergence of a kind of censorship mechanism.
The Court in its examination referred to its precedents established through the individual applications brought before the Court based on Article 9 of the Internet Law. The Constitutional Court pointed to the determinations made by the Court itself aiming to provide a guidance to the courts of first instance for balancing the freedom of expression and the right to honor and reputation of the damaged persons.
In this context, the Court reiterated its findings reached in the individual applications that criminal judges of peace reached to conclusions without carrying out an adversarial proceeding and without clearly showing the need of resolving the matter immediately and promptly and did not approach to matters with a perspective to fairly balance the conflicting rights. The Constitutional Court stated that the reasoned decisions rendered by criminal judges of peace contained vague statements that were irrelevant of the circumstances of the concrete cases and did not contain any explanatory statements clearly indicating on what basis the criminal judge of peace found that the publication subject to its examination had clearly violated personal rights.
In this framework, the Court concluded that the lack of specificity as to the scope and limits of Article 9 created a wide discretion for the judicial authorities and that the rules in question did not provide a tiered system of restricting internet content against attacks on personal rights. The Court concluded that the relevant restriction constituted a severe interference with the freedoms of expression and the press by preventing access to a certain content on the internet within the borders of a certain country indefinitely from the date of the decision.
For the reasons explained above, the Court decided that the amendments made to Article 9 are unconstitutional, which were annulled by the Court. The remaining part of Article 9 has also been annulled as it is no longer applicable due to the annulment of the relevant amendments. Therefore, Article 9 pertaining to the applications that can be made by real and legal persons, institutions and organizations claiming that their personal rights were violated has been annulled in its entirety.
Conclusion and Evaluations
The amendments made to the Internet Law from time to time have caused controversy in many aspects and have often been the subject of allegations that the constitutional principle of proportionality is not respected about restriction of constitutional rights and freedoms. The wide scope of application of the Internet Law, the fact that the platforms covered under the law are widely used in our daily lives, and the fast and changing nature of the Internet certainly have been causing these allegations.
Briefly, in the subject decision in which the Constitutional Court examined various provisions of the Internet Law, the Constitutional Court concluded that granting the ICTA President the power to remove contents violates the presumption of innocence as a result of its evaluation in terms of Article 8, and the implementation Article 9 by judicial authorities constitutes a disproportionate interference with freedom of expression as a result of its assessment in terms of Article 9.
In our opinion, it should be evaluated that the balance between freedom of expression and freedom of the press and the legitimate aim pursued by the relevant provisions, which is to promptly and effectively eliminate potential effects of unlawful acts and crimes, should be observed by the legislator while enacting the new laws and regulations. In this respect, general rationale, purpose and scope of the Internet Law as well as Articles 8, 8/A, and 9/A regulating the procedures for blocking access to publications on the internet should also be considered as a whole. A legislative study may be necessary during law-making process, considering principles of purposive, systematic and constitutional interpretation.
As a matter of fact, the Constitutional Court has decided that the Court’s decision will enter into force 9 months after publication of the decision in the Official Gazette, since there is a public interest for legal gap to be filled before the annulment decision comes into effect. Thus, the annulment decision will enter into force on 10.10.2024. In this period, in order to replace the provisions annulled by the Constitutional Court as a result of these evaluations, the legislator is expected to introduce a tiered interference mechanism for restriction of internet content against attacks on personal rights, to more extensively regulate the procedures and stages with respect to decisions having an impact on content, to effectively limit those decisions in terms of duration and to develop effective application mechanisms against administrative sanctions.
On the other hand, many other provisions of the Internet Law claimed to be unconstitutional and criticized in the sector were also examined. The Constitutional Court decided that Article 2 of the Internet Law (regarding the definition of "social network provider"), Article 3/5 (allowing the notification of administrative fines via electronic mail or other means of communication if the addressee is located abroad) and Article 3/6 (increasing the lower and upper limits of the administrative fines which may be imposed by the ICTA President) are compliant with the Constitution.
 Please see the below link for the full text of the Constitutional Court’s decision dated 11.10.2023 and numbered 2020/76 E. and 2023/172, published in the Official Gazette dated 10.01.2023 and numbered 32425.
First published by Legalink European Newsletter in Jan 29, 2024.