ABSTRACT
In the article, in the light of the decisions of the Constitutional Court and the European Court of Human Rights, the legal foundations, limits and problems in practice of blocking access are discussed and comparisons are made with the practices in foreign countries.
I. INTRODUCTION
Blocking access and removal of content has become an important legal issue in the digital age in terms of the protection of fundamental rights and freedoms for individuals as well as the entire society and public order. With the widespread use of the Internet, it has become an obligation to protect constitutional rights such as access to information and freedom of expression and national security in the digital environment. In this context, access blocking practices provide protection of rights in many different situations such as copyright violations, attacks on personal rights, protection of public order and prevention of crimes. However, it is also known that when these regulations are not implemented with a sound legal framework, they can lead to the restriction of fundamental human rights, especially the violation of freedom of expression and freedom of the press.
In Turkey, access blocking and removal of content is regulated under the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications (“Law No. 5651”).1 The Law defines access blocking as “blocking access from domain name, blocking access from IP address, blocking access to content (URL) and similar methods”. Law No. 5651, which entered into force in 2007, has been amended eleven times by different laws, three times by decrees with the force of law and five times by decisions of the Constitutional Court (“CC”), and its implementation has been the subject of numerous applications before the Constitutional Court and the European Court of Human Rights (“ECHR”).
The Constitutional Court previously made important assessments in its pilot decision in the Keskin Kalem Yayıncılık ve Ticaret A.Ş. ve Diğerleri Application in 2021, and finally annulled certain phrases in Article 8 and the entire text of Article 9 of Law No. 5651 in its decision dated October 11, 2023 and numbered 2020/172. These amendments entered into force on October 10, 2024. In particular, the annulment of Article 9, which regulates the protection of personal rights, has created uncertainty as to how this protection previously provided will be maintained and how it will be reorganized. As of the writing of this article, no provision or other regulation has been introduced to replace the annulled article, which creates a legal vacuum.
II. LEGISLATION PROVISIONS
Law No. 5651 contains various provisions with the aim of regulating broadcasts on the internet and combating crimes committed through these broadcasts. Articles 8, 8/A, 9 and 9/A of the Law provide measures aimed at both ensuring public security and order and protecting the rights of individuals.
Article 8 of Law No. 5651 regulates access blocking or content removal decisions for the catalog crimes listed in the text. This measure may be taken ex officio by administrative authorities to file a criminal complaint or by a judge’s decision during the investigation or prosecution phase. In the event of a decision of non-prosecution as a result of the investigation or acquittal as a result of the prosecution, the decision to remove the content and/ or block access shall automatically become null and void. In this respect, the application of Article 8 of Law No. 5651 is a temporary measure.
Article 8/A regulates access blocking measures in vital matters such as national security, public order and public health, and in cases requiring urgent intervention. Upon the request of the relevant ministries or the Prime Ministry, the Information and Communication Technologies Authority (ICTA) can quickly block access, and this measure is then submitted to the judge for approval. This regulation is used especially in cases where there is a danger of delay, such as the fight against terrorism.
According to Article 9 of Law No. 5651, the person who claims that his/ her rights have been violated due to the content may apply to the content provider or, if he/ she cannot reach it, to the hosting provider and request the removal of the content related to him/ her and the publication of his/ her response prepared by him/ her on the internet for a period of one week, not exceeding the scope of the content in the publication. The content or hosting provider shall fulfill the request within two days from the date of receipt.
Prior to the Constitutional Court’s annulment decision numbered 2020/172, Article 9 of Law No. 5651 regulated the application process for claims of violation of personal rights. It was regulated that those whose rights were violated could first apply to the content or hosting provider and request the removal of the infringing content, and if the request was not met, they could apply to the criminal judge of peace. Decisions could be taken on a URL-by-URL basis and, where justified, access to an entire website could be blocked. This article was completely canceled by the aforementioned decision and the text was completely removed.
Article 9/A provides protection for content that violates the right to privacy. The victim may apply directly to the ICTA and request that the content be taken off the air or access be blocked. Upon these applications, the ICTA imposes an access block within four (4) hours at the latest. These decisions are subject to review through appeals to the criminal judge of peace.
III. THE CONSTITUTIONAL COURT’S APPROACH TO ARTICLE 8/A
Upon the norm review application, the Constitutional Court made an important assessment as to whether the decision to take down the content under paragraph (4) of Article 8 of Law No. 5651 is contrary to the principle of presumption of innocence. The right to a fair trial and the presumption of innocence, guaranteed under Articles 36 and 38 of the Constitution, state that a person should not be considered guilty until proven guilty2. This principle is not limited to criminal proceedings, but can be applied in any legal process.
The Constitutional Court has considered the implementation of administrative decisions to take down content without a finding of guilt as a violation of the presumption of innocence. In particular, the decision to take down content based on Article 8/A of Law No. 5651 can only be implemented upon a determination of guilt by an administrative authority, without the decision of a criminal court. The Constitutional Court ruled that a final measure against a person under suspicion of a crime, which can only be imposed upon a finding of guilt by an administrative authority, is contrary to the principle.
The Court stated that the decision to take down the content should be based on the criminal proceedings and should be applied as a temporary measure. However, it was concluded that the administrative measure applied in the regulation in question, which is not dependent on the criminal investigation and trial process, undermines the presumption of innocence. The application of the administrative measure to remove content based on an allegation that has not been established by a finalized court decision causes individuals to be treated as guilty before they are found innocent.
IV. THE CONSTITUTIONAL COURT’S APPROACH TO ARTICLE NINE
The Constitutional Court cited different grounds regarding the application of Article 9 of Law No. 5651. The Court ruled that the access blocking practices were contrary to Articles 13, 26 and 28 of the Constitution and constituted a severe interference with the freedoms of expression and the press.
The Constitutional Court emphasized that the criteria of legal security and certainty were not fulfilled in the implementation of Article 9 of Law No. 5651 and that this gave the judicial authorities a wide margin of appreciation. According to the decision, the fact that criminal judgeships of peace issue access blocking decisions without conducting a contentious trial, without delay and without providing a concrete justification creates deficiencies in establishing a fair balance between freedom of expression and personal rights.
The Constitutional Court also stated that the intervention methods provided for in Article 9 should be a last resort when there are other procedures to combat harmful content on the internet. In this framework, the Court stated that the procedure does not provide the necessary safeguards to prevent arbitrary behavior by narrowing the discretionary power of public authorities and does not include mechanisms to ensure proportionate decisions in accordance with the requirements of the democratic social order.
V. THE COURT’S PILOT JUDGMENT ON ARTICLE NINE
The Constitutional Court also frequently referred to its earlier pilot judgment in the Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others Application3. The Constitutional Court’s pilot judgment practice is a method that aims to issue precedent-setting judgments that will lead to the same legal outcome in similar cases. The Constitutional Court may issue a pilot judgment in a particular case if it considers an important point of law that is not specific to that case but which may be applicable to similar cases. The pilot judgment clearly states the relevant point of law and sets out the standard to be applied in future cases on that point. This avoids the need to repeatedly make the same assessments for cases involving the same legal issue and increases the efficiency of the judicial process. The most important feature of pilot judgments is that, although they are not binding, they serve as an important guide for other courts and even for the entire legal system.
In the aforementioned pilot judgment, the Constitutional Court emphasized the importance of protecting freedom of expression and freedom of the press in a democratic society and stated that access blocking decisions should only be taken in a measured manner that is clearly contrary to the law. The Constitutional Court emphasized that the URL-based access blocking method should be preferred, otherwise blocking an entire website would constitute a disproportionate intervention; furthermore, criminal judgeships of peace should provide more detailed justifications when issuing access blocking decisions and that this article should be applied especially in prima facia, i.e. prima facie violations of personal rights, otherwise it may lead to violations of rights. Concluding that there were deficiencies in terms of clarity and proportionality in the implementation of the access blocking decisions of Law No. 5651, which had negative effects on freedom of expression and freedom of the press, the Court ruled that the access blocking decisions taken under Article 9 violated the freedoms of expression and freedom of the press guaranteed by Articles 26 and 28 of the Constitution, and awarded moral damages in favor of the applicants.
VI. CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
In the aforementioned judgements, the Constitutional Court also referred to the judgements of the European Court of Human Rights. From the case-law of the ECHR, the judgements of Bulgakov v. Russia4, Engels v. Russia5, OOO Flavus and others v. Russia6, Vladimir Kharitonov v. Russia7 play a decisive role. However, the ECHR also made findings directly on the annulled provision and Law No. 5651 in general in Ahmet Yıldırım v. Türkiye8 and Cengiz and others v. Türkiye9.
In the case dated 18 December 2012, Ahmet Yıldırım v. Turkey, Ahmet Yıldırım created a blog using the platform named Google Sites and the posts made therein were evaluated by the local court within the scope of the crimes under the Law on Crimes Committed Against Atatürk. Thereupon, pursuant to Article 8 of Law No. 5651, an order was issued to block access to the website. However, upon the court’s order, the Telecommunications Communication Presidency (which was closed down on 15 August 2016 and its duties and powers were transferred to the Information and Communication Technologies Authority) blocked access not only to the website containing the relevant posts, but also to the entire Google Sites platform, on the grounds that the website did not have a separate server certificate and that the individual lived abroad. In a similar case, Engels v. Russia, access to the applicant’s own website on the same hosting service, DreamHost, was blocked due to the allegedly illegal publications of another website.
In all the above-mentioned judgments, the European Court of Human Rights concluded that the applicants’ rights had been violated. In these judgments, it has set out a comprehensive set of safeguards that do mestic law should provide in order to avoid excessive or arbitrary effects of blocking access to illegal content on the internet. These principles, which have also been adopted by the Constitutional Court, are specifically aimed at minimizing the impact of blocking measures on freedom of expression.
The ECHR noted that internet content should not be blocked before it is published and that its publication should not be subject to approval, drawing attention to the need to avoid “prior censorship” practices. While emphasizing that access blocking measures must be implemented in a transparent and public manner, it was stated that these measures must be prevented from having a disproportionate and negative impact on other content or on freedom of expression in general. For example, according to this criterion, access blocking decisions taken on platforms such as Google Sites or DreamHost interfere not only with illegal content, but also with countless other content that has nothing to do with the offenses and violations that may be the subject of the measure, violating the freedoms of expression, communication and the press of content producers and consumers.
Mechanism and pointed out that public authorities should take proportionate decisions, balancing various interests such as freedom of expression, public safety and combating crime. “Providing affected parties with advance notice of blocking measures to ensure website owners’ participation in blocking processes, giving website owners the opportunity to remove illegal content, the obligation on public authorities to determine before applying blocking measures whether the same result could have been achieved by less intrusive means in order to ensure that all contractual interests are balanced, or to carry out an impact assessment of the blocking measure to ensure that it targets only illegal content and has no arbitrary or excessive effects, including those resulting from the method chosen to implement it, or, if an urgent intervention is necessary, to justify the urgency, the existence of a court or other independent judicial mechanism where the parties affected by the decision can be heard and challenge the decision in a manner that allows for a contradictory trial” are considered standard practices required in the case law of the ECHR and the Constitution.
VII. PROTECTION OF PERSONAL RIGHTS AFTER THE ANNULMENT DECISION
The Constitutional Court’s annulment of Article 9 of Law No. 5651 has created a vacuum regarding the procedure to be followed in case of violation of personal rights on the internet. Of course, requests for blocking access and removal of content are not the only way for individuals to protect their personal rights, but Articles 9 and 9/A of Law No. 5651 are regulations that provide the opportunity to quickly intervene in violations of personal rights and private lives10. The Constitutional Court’s annulment of Article 9 of Law No. 5651 has created a vacuum regarding the procedure to be followed in case of violation of personal rights on the internet. Of course, requests for blocking access and removal of content are not the only way for individuals to protect their personal rights, but Articles 9 and 9/A of Law No. 5651 are regulations that provide the opportunity to quickly intervene in violations of personal rights and private lives. In addition, the right to claim material or immaterial damages is reserved for those who have been harmed by the interference. Article 25 of the Turkish Civil Code reads as follows: “The plaintiff may request the judge to prevent the danger of attack, to put an end to the ongoing attack, and to determine the illegality of the attack whose effects continue even if it has ceased. The plaintiff may also request that the correction or decision be notified to third parties or published. The plaintiff reserves the right to claim material and moral damages and the right to demand that the profit obtained due to the unlawful attack be given to him in accordance with the provisions of unprofessional business. The claim for moral damages cannot be transferred unless it is accepted by the other party; it cannot be passed on to the heirs unless it is asserted by the heir. The plaintiff may file a lawsuit for the protection of his/ her personal rights before the court of his/her own domicile or the court of the defendant’s domicile.”
The main difference between the protection provided by these remedies and the protection provided by Law No. 5651 is that while the decision to block access can be issued in a few days with the time periods stipulated in the law, according to the statistics of the Ministry of Justice for the year 2023, the average duration of a file in the Civil Courts is two hundred and fifty-one (251) days11. In addition, in practice, moral compensation claims are rarely decided in favor of the party whose personal rights have been violated; even in these cases, the moral compensation awarded cannot satisfy the moral damage of the person whose rights have been violated.
Violation of personal rights may constitute a crime and the content targeting the person may include statements subject to insult and threat crimes. In fact, the offense of threatening is regulated under Article 106 of the Turkish Penal Code, while the offense of insult is regulated under Article 125 of the same code. Article 106 of the Turkish Penal Code and the offense of defamation is regulated in Article 125 of the same law:
“Article 106 - (1) A person who threatens another person with the bet that he or she will commit an attack on his or her life, body or sexual inviolability or that of a relative shall be sentenced to imprisonment from six months to two years. If this offense is committed against a woman, the lower limit of the penalty shall not be less than nine months. In the case of threatening to cause great damage in terms of assets or to do other evil, upon the complaint of the victim, imprisonment up to six months or a judicial fine shall be imposed...”
“Article 125 - (1) Any person who imputes a concrete act or fact that may offend the honor, dignity and prestige of another person or who attacks the honor, dignity and prestige of another person by swearing shall be sentenced to imprisonment from three months to two years or to a judicial fine. In order to be punished for insulting the victim in absentia, the act must be committed in the presence of at least three persons.
(2) If the act is committed through an audio, written or video message addressed to the victim, the penalty specified in the paragraph above shall be imposed...”
In addition, in paragraph 2 of Article 125 regulating the offense of defamation, publicly committing the offense is included within the scope of the qualified case. According to the provision of this paragraph, social media posts made in a way that everyone can see and publications on the internet are also considered within the scope of this qualified case:
“Article 125 (4) If the insult is committed publicly, the penalty is increased by one-sixth.”
Pursuant to these articles, the person whose personal rights are violated can file a complaint and file a criminal complaint against the posts that violate these rights and constitute a crime12.
Finally, it is possible to notify the social network provider about posts containing offensive discourse, especially on social media channels, sometimes even if such discourse is not directed at the user personally. Social network providers have introduced a number of rules for their users to follow when making posts. In addition to statements that may constitute offenses of insult and threats, many hurtful words and wishes that are not covered by the Turkish Criminal Code may also constitute a violation of these rules. Social network providers may remove posts that do not comply with these rules as a result of the investigation carried out by their relevant units upon notification, and may even prevent users who cause repeated violations from posting. In addition to offensive remarks and hate speech, obscene and violent posts are also considered within the same scope.
VIII. PRACTICES IN FOREIGN COUNTRIES
Internet usage in the world has increased two thousand seven hundred and fifty (2750) times in just thirty-four (34) years from two (2) million in 1990 to more than five and a half (5.5) billion by October 202413. The internet, which fulfills different needs all over the world and leads to new needs, has also entered the field of control of the law like every other area of life. In addition to the protection of public order and national security, real and legal persons may also have political and social objectives in the application of blocking access in the world.
The largest and most comprehensive blocking of access in the world is implemented through the national system known as the “Great Firewall” in China, supported by technical methods such as IP blocking, DNS manipulation and deep packet inspection. The laws allow for the censorship of foreign social media platforms (e.g. Facebook, Twitter and Google) and information sources. In addition, the Chinese government requires domestic internet companies (e.g. WeChat, Baidu and Weibo) to fulfill their obligation to filter content and provide user data to the government. The ban on foreign social media platforms has created a huge advantage for local internet companies, which have launched apps to fill the gap and dominate a huge market of over one billion internet users14. In Germany, the blocking of access to internet content is framed by strict legal regulations that ensure the balance between freedom of expression and the fight against illegal content. In this context, the Telemedia Act (Telemediengesetz, TMG)15 determined the obligation of content providers to interfere with illegal content, while the Criminal Code16 (Strafgesetzbuch, StGB) provided the legal basis for blocking criminal content such as hate speech, child abuse material and terrorist propaganda. Subsequently, the Online Expression Law17(Netzwerkdurchsetzunggesetz, NetzDG), which entered into force in 2017, obliged major social media platforms to quickly investigate and remove complaints of illegal content, imposed high fines for failure to fulfil obligations, and imposed internal audit responsibilities on social media companies. As a matter of fact, the NetzDG was taken as an example in the amendments made to Law No. 5651 in 202018 In the United States, measures similar to blocking access and takedown of content are restricted by the First Amendment of the United States Constitution on the freedoms of expression and the press. Restrictions on the administration and protracted litigation processes, similar to Turkey, have pushed public authorities to take indirect measures19. In the United States, the administration applies to content and hosting providers for the removal of the content to be removed or the suspension of access to this content, instead of directly applying judicial measures against content providers20. Blocking access to internet content in Russia is based on a flexible legal framework that gives broad powers to the administration and the executive21. In Russia, access blocking decisions are generally taken as an administrative act and do not need to be approved by the courts22. The basis of the regulations in this area is the Law on Information, Information Technologies and Information Protection (Об информациии, информационных технологиях и о защите информации, № 149-ФЗ),23 which entered into force in 2006. In addition, the Register of Prohibited Websites, administered by Roskomnadzor, lists content that should be blocked at the request of courts or certain government agencies. It is possible to block content such as terrorism, child abuse material, extremist propaganda, incitement to suicide and encouragement of drug use, as well as content that the government considers a “threat to public order”24.
IX. CONCLUSION
Blocking access and removal of content is an important legal issue in the digital age in terms of freedom of expression and press freedom, protection of personal rights and private life. The Constitutional Court’s annulment decision is of a nature to prevent violations of rights to freedom of expression. However, this decision has eliminated an important measure for the protection of personal rights and created a new uncertainty in the legal system. While the decisions of the Constitutional Court and the European Court of Human Rights remain important guides in maintaining this balance, it is clear that the annulment decision creates the need for a new regulation.
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FOOTNOTE
1 Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications. https://www. mevzuat.gov.tr/mevzuat?MevzuatNo=5651&MevzuatTur=1&MevzuatTertip=5.
2 Constitution of the Republic of Türkiye (Law No.2709). https://www. mevzuat.gov.tr/mevzuat?MevzuatNo=2709&MevzuatTur=1&MevzuatTertip=5.
3 Constitutional Court of Türkiye, Individual Application Decision No. 2018/14884. https://kararlarbilgibankasi.anayasa.gov.tr/BB/2018/14884
4 Avrupa İnsan Hakları Mahkemesi. Bulgakov v. Russia, Application no. 20159/15. https://hudoc.echr.coe.int/ eng?i=001-203181.
5 Avrupa İnsan Hakları Mahkemesi. Engels v. Russia, Application no. 61919/16. https://hudoc.echr.coe.int/ eng?i=001-203180.
6 Avrupa İnsan Hakları Mahkemesi. OOO Flavus and Others v. Russia; Application no. 12468/15, 23489/15, 19074/16. https://hudoc.echr.coe.int/ eng?i=001-203178.
7 Avrupa İnsan Hakları Mahkemesi. Vladimir Kharitonov v. Russia, Application no. 10795/14. https://hudoc.echr. coe.int/eng?i=001-203177.
8 Avrupa İnsan Hakları Mahkemesi. Ahmet Yıldırım v. Türkiye, Application no. 3111/10. https://hudoc.echr.coe. int/eng?i=001-115705.
9 Avrupa İnsan Hakları Mahkemesi. Cengiz and Others v. Türkiye; Application no. 48226/10, 14027/11. https://hudoc.echr.coe.int/eng?i=001-1591888.
10 Türk Medeni Kanunu (4721 sayılı Kanun). https://www.mevzuat.gov.tr/ mevzuatmetin/1.5.4721.pdf.
11 Adalet Bakanlığı. (2023). 2023 yılı adalet istatistikleri çalışması. https:// adlisicil.adalet.gov.tr/Resimler/SayfaDokuman/22042024115644ADalet_ist-2023CALISMALARI59.pd
12 Türk Ceza Kanunu. https://www. mevzuat.gov.tr/mevzuat?MevzuatNo=5237&MevzuatTur=1&MevzuatTertip=5.
13 Datareportal. Global digital overview. https://datareportal.com/global-digital-overview.
14 Washington Post. (2016). China’s scary lesson to the world: Censoring the internet works. https:// www.washingtonpost.com/world/ asia_pacific/chinas-scary-lesson-tothe-world-censoring-the-internetworks/2016/05/23/413afe78-fff311e5-8bb1-f124a43f84dc_story.html.
15 Telemediengesetz (TMG). https:// www.buzer.de/s1.htm?g=TMG&f=1.
16 Strafgesetzbuch (StGB). https:// www.gesetze-im-internet.de/stgb/.
17 Netzwerkdurchsetzungsgesetz (NetzDG). https://www.gesetze-im-internet.de/netzdg/BJNR335210017. html.
18 BBC Türkçe. (2020). Türkiye: YouTube’dan içerik kaldırma talepleri. https://www.bbc.com/turkce/haberler-turkiye-53397949.
19 Derek E. Bambauer, Cybersieves. 2009. Duke Law Journal, Vol. 59, 2009, Brooklyn Law School, Legal Studies Paper No. 149, https://ssrn. com/abstract=1143582.
20 OpenNet Initiative. United States and Canada. https://opennet.net/research/regions/united-states-and-canada.
21 https://www.bbc.com/russian/ russia/2013/12/131220_duma_websites_block.
22 Lenta.ru. (2013). Duma approves internet blocking law. https://lenta.ru/ news/2013/12/30/block/.
23 Federal Law No. 139-FZ on Protecting Children from Information Harmful to Their Health and Development. http://www.kremlin.ru/acts/ bank/24157.
24 BBC. (2013). Russia: Lawmakers pass controversial internet regulation. BBC Russian. (2013). Госдума приняла закон о блокировке сайтов. https://www.bbc.com/russian/russia/2013/12/131220_duma_websites_block
