Removal of and Blocking Access to Online Contents: Constitutional Court Annuls Internet Law Provisions

The Constitutional Court’s decision with no. 2023/172 (“Decision”) was published on the Official Gazette on January 10, 2024. The Decision concerns the application for the annulment of several provisions under the Law on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts (“Internet Law”).

While the Constitutional Court decided to annul the Internet Law provisions on removal of content and blocking access based on (i) the publication of criminal content online (Article 8) and (ii) the violation of personality rights (Article 9); it evaluated that the following provisions are in compliance with the Constitution of the Republic of Turkey (“Constitution”): (i) the definition of the social network providers, (ii) the delivery of notices of administrative fine decisions to relevant parties residing abroad, (iii) the administrative fines to be imposed on hosting providers failing to fulfill their obligations, (iv) several obligations of social network providers.

A. The Evaluations of the Constitutional Court

The Definition of the Social Network Providers

The grounds for the annulment application of this article were that the phrases “social interaction”, “create”, “view”, “share” are not clear and precise which results in unclarity for determining which internet medias are within the scope of this definition and so, wide discretion power for the administrative authority. Furthermore, the application stated that specific obligations for social network providers are unclear and that the provisions limiting the freedom of persons must be clear and foreseeable pursuant to the Constitution.

While the Constitutional Court accepted that the mentioned phrases are generalizations, it rejected the annulment of this article as these phrases are not unclear or unforeseeable; and that the reason for using such intangible phrases is to contain any solution aimed with the provision, which can vary depending on a concrete case occurring on the Internet, a virtual environment where the borders are hard to define.

The Delivery of Notices of Administrative Fine Decisions to Relevant Parties Residing Abroad

This article stipulates that if the addressee of the administrative fines to be given per the Internet Law is located abroad, the Information Technologies and Communication Authority (“ITCA”) may issue a notice related to such administrative fines via (i) e-mail or (ii) other communication tools through information obtained from sources such as communication tools on internet pages, domain names, IP addresses and similar resources.

The grounds for the annulment application of this article were based on the fact that an e-mail or any other kind of notification will be accepted as an official notification, without understanding whether it has reached the addressee or on what date it has reached. It is claimed that such notification procedure (i) is incompatible with freedom to claim rights and right to effective remedy, (ii) is in violation of international conventions to which Turkey is a party, (iii) does not carry legal certainty, and lastly (iv) contradicts the principle of inequality.

In this regard, the Constitutional Court evaluated that the notification procedure regulated by the provision is in compliance with the Constitution, as the addressees subject to the Internet Law are under the following obligations:

• Content, hosting, access and collective use providers are under the obligation to keep their promotional information up to date on their website,
• Social network providers with more than one million daily accesses from Turkey are under the obligation to include their representative’s contact information on their website in a way that can be easily seen and directly accessed,
• Internet service providers are under the obligation to be a member of the Access Providers Association.

Accordingly, the Constitutional Court stated that since the addressees of the notification are under the obligation to provide a valid contact information as detailed above, the notifications to be made in line with this article is in compliance with the Constitution and fulfills the purposes of written notifications, i.e. informing the addressee regarding the action taken against them and documenting the date on which the notification was made.

The Administrative Fines to Be Imposed on Hosting Providers Failing to Fulfill Their Obligations

The grounds for the annulment application of this article were that the administrative fine amounts were increased ten times, this increase was disproportionate, and that the President has an arbitrary discretion in imposing the administrative fine, which is in contrary to the Constitution.

While the Constitutional Court agreed that the article does not state the criteria for determining the administrative fine amount, it referred to the Misdemeanor Law No. 5326, where all activities resulting in an administrative fine shall be subject to. Constitutional Court stated in its evaluation that the Misdemeanor Law regulates the criteria for determining an administrative fine amount (i.e. content of the misdemeanor, fault and the economic situation of the perpetrator) and that the President of ITCA must apply such criteria; hence, does not have an arbitrary discretion.

Furthermore, the Constitutional Court noted that with the consideration of the size of the economic value occurring in the internet environment in the recent years, the fine amounts are not deemed as an excessive burden to the hosting providers.

Lastly, the Constitutional Court mentioned that the mentioned provision acts as a deterrent by regulating the imposition of administrative fines in the event that hosting providers, which fulfil a major function in the internet environment, fail to fulfil their obligations that also serve the public sphere. Hence, the administrative fine provision is based on a legitimate purpose and necessary and appropriate with the provision’s aim.

Obligations of Social Network Providers

The Constitutional Court did not examine the Provisional Article 4 of the Internet Law which regulates the obligations of the social network providers subject to the claim due to the fact that the said article had already been amended with the Amendment Law No. 7418 on the Press Law and Certain Laws, published on the Official Gazette on October 18, 2022.

B. The Decisions of the Constitutional Court on Removal of Content and Blocking Access

The Publication of Criminal Content Online

Constitutional Court evaluated this article based on the presumption of innocence regulated under the Constitution. Accordingly, while the adoption of various judicial and administrative measures in relation to a person suspected of a crime is not prohibited under the Constitution, such measures must be a temporary measure carried out in connection with the criminal proceedings. Measures that are completely detached from the criminal proceedings and have a final nature undermine the presumption of innocence, as they result in the person being treated as guilty before a criminal court decision.

In this context, the measure under the Article 8/4 of the Internet Law, i.e. the decision of removal of content, is considered a final measure that is detached from the criminal proceedings and is applied by the determination of the President of ITCA. Moreover, this measure cannot be examined during the criminal investigation process initiated in relation to the related offense that constitutes the justification for the administrative measure applied by the President, and that the injunction continues to stand even if the trial results in a verdict other than a conviction.

As a result, the Constitutional Court concluded (and decided to annul) the provisions regarding the decision to remove the content, which is in the nature of a final measure depending on the determination of guilt by an administrative authority, and the imposition of administrative fines in case of non-execution of this decision violates the presumption of innocence, without a finalized court decision determining that the acts regulated as crimes have been committed.

 The Violation of Personality Rights

The Article 9 of the Internet Law, subject to the annulment, regulates that the natural person, legal entities, institutions and organizations claiming that their personality rights are violated due to a content published on the internet may ask to (i) the content provider, or (ii) (if they cannot reach the content provider) the hosting provider, to remove the content by using the warning method. They may also request access blocking by applying directly to the judge of the court of peace.

The Constitutional Court stated that the said article restricts (i) the freedom of expression, by enabling the removal of contents published on the internet and/or blocking access to these publications, and (ii) the freedom of the press, considering that these publications may also be within the scope of internet journalism. Pursuant to the Constitution, such restriction must be made by law and must comply with the reasons for restriction stipulated in the Constitution, the requirements of the democratic social order and the principle of proportionality.

Accordingly, the Constitutional Court referred to its Decision with No. 2018/14884[2], which concluded that, while implementing this provision, the criminal judgeships of peace (i) reached conclusions without conducting conflicting trial and without presenting the need for immediate and prompt disposal and (ii) without the approach ensuring the supervision of a fair balance between conflicting rights. Moreover, the reasoned decisions of criminal judgeships of peace contain general statements independent of the circumstances of the concrete events and do not examine how the publications violate personality rights. Within this framework, the Constitutional Court evaluated that the lack of certainty regarding the scope and limits of Article 9 of the Internet Law creates a wide margin of appreciation for the judicial authorities and that it is difficult to obtain results from the objections against these decisions.

On the other hand, the Constitutional Court observed that the said article does not provide a gradual intervention method for the restriction of internet content against attacks on personality rights, as the restrictions prevents access to a certain content on the internet indefinitely from the date of the decision. In this respect, the Constitutional Court concluded that Article 9 of the Internet Law:

• constitutes a severe interference with the freedoms of expression and the press,
• does not provide procedural safeguards to prevent arbitrary behavior by narrowing the discretionary power of public authorities,
• does not contain the guarantees that will ensure proportionate decisions in accordance with the requirements of the democratic social order.

In the light of the above explanations, the Constitutional Court decided that the Article 9 of the Internet Law is unconstitutional and thus, annulled.

The annulments will enter into force on October 10, 2024.

[1] The offenses specified under the Article 8 of the Internet Law are as follows:

a) The crimes under the Turkish Criminal Code dated 26/9/2004 and numbered 5237;

• Encouragement of suicide (Article 84),

• Sexual abuse of children (Article 103, first paragraph),

• Facilitate the use of drugs or stimulants (Article 190),

• Hazardous substance for health (Article 194),

• Obscenity (Article 226),

• Prostitution (Article 227),

• Providing space and facilities for gambling (Article 228).

b) Crimes in the Law Concerning Crimes Committed Against Atatürk dated 25/7/1951 and numbered 5816.

c) the crimes regulated under the Law on Regulation of Betting and Games of Chance in Football and Other Sports Competitions dated 29/4/1959 and numbered 7258.

ç) the crimes regulated under first and second paragraphs of Article 27 of the Law on State Intelligence Services and National Intelligence Organization dated 1/11/1983 and numbered 2937.

[2] Keskin Kalem Yayıncılık ve Ticaret A.Ş. and other [GK], B. No: 2018/14884, 27/10/2021.

Authors: Burak Özdağıstanli, Sümeyye Uçar, Begüm Alara Şahinkaya