The Constitutional Court (AYM) gave a “pilot decision” regarding 9 different news and 129 URLs that had access problems. Keskin Kalem Publishing, And Journalism, Birgün Publishing, Yeni Gün News Agency, Gelenek Basım Yayım, Artı Media, and journalists Çiğdem Toker and Şevket Uzun evaluated their application on the side that the decision to block access to news published on internet news sites is a violation of freedom of speech and press. The General Delegation of the Constitutional Court decided unanimously that the freedom of press and speech had been violated and that this should be implemented as a pilot decision, and decided to pay different amounts of compensation to the applications.
Decision; It was sent to the courts that caused access problems to eliminate the violation, and to the Grand National Assembly of Turkey for the arrangements in connection with the decision. In connection with the decision, it was noted that according to the Constitution, the public has the right to receive information, that the decision to block access interferes with the right to impart information and ideas, and the right of the public to receive information and ideas, and it is stated that “how it harmed the honor and dignity” of those who filed the lawsuit in the access prevention decision given by the peace courts. It was stated that no explanation was given. In the decision, it was stated that the decision of the courts “consists of only one sentence, and the objections to these decisions are turned down on the basis of relations consisting of only one sentence”.
“Suitable for disproportionate blocking”
In connection with the decision, it was stated:
“The press was not included in the process of making the decisions in question. He did not have the opportunity to be informed about the evidence presented and the opinions presented by the requesting parties and to express their opinion on them. Even if it seems reasonable that the foreseen way cannot provide certain stylistic guarantees at first due to the need to protect the personality rights of the individual in a fast and effective form, the deficiencies in question should definitely be compensated in the next steps of the judicial process so that the rights of the other party are not harmed. A strict and effective control mechanism is essential for this. However, it has not been evaluated that a decision was made on the basis of the dispute by listening to all parties from the decisions of the appeal authorities and balancing the conflicting rights. The law does not impose a duty on the courts of first instance to carry out a review of the type that will make up for the deficiencies of the procedural guarantees that are not provided. Secondly, it is not defined how the peace judgeships will use this power. Denial of access has been determined as the only means of intervention. Although it is stated that access cannot be prevented unless it is necessary, this rule alone is not suitable for preventing arbitrary and disproportionate interventions to freedom of speech.
“Creates indefinite harm”
Although it is stated that the regulation has limited effects, it is a heavy intervention tool because it creates an indefinite obstacle, and it is a formula that should not be applied as long as other methods can be used with wasteful content on the Internet. (Law on the Regulation of Broadcasts Made on the Internet and Making Efforts with Misdemeanors Through These Broadcasts) In this context, the 9th point of the law will narrow the discretion of the public authorities and will ensure that the procedural guarantees of the judicial law are made in accordance with the requirements of the democratic society order, in order to prevent arbitrary acts. Does not include warranties. It is obvious that the existing system needs to be reconsidered. The parliament can also make new regulations by staying within the existing system. In this case, the regulations must comply with the requirements of the democratic society order defined in the constitution and must not lead to violations.
Laws governing the termination of the Internet must be designed to allow as narrow a scope as possible, and its use must be tailored to the requirements of an urgent societal need.
It is necessary to put forward with a reasonable degree of rigor what legal consequences will be attached to which behaviors and facts and what kind of an intervention authority will arise for the public authorities in this context. In order to prevent access, criteria should be established to determine a criterion/threshold for the size of the burden of the wrongful act.
It is essential that a way that restricts freedom of speech does not lead to arbitrary practices and that it contains the necessary guarantees so that it is not at a level that will eliminate the use of freedom excessively.
It is an obligation to establish a way in which they can have the opportunity to put forward their defense, including by presenting evidence when decisions are challenged.
“It should be opened to the courts of appeal and appeal”
It should not be forgotten that the opening of the decisions made by the appeal authority to the control of the appeal or appeal authority is of vital importance in terms of preventing the existing violations of freedom of speech and press, which are indispensable for the democratic system.
“Must be the last cure”
Decisions should be brought to guide the criminal courts of peace. It should be noted that blocking access is an essential and exceptional measure in order not to cause disproportionate and arbitrary practices, and it is the last remedy and last measure that can be resorted to.
Before resorting to the measure of blocking access, the obligation should be made to assess the impact, to justify the blocking of access without delay, to ensure a reasonable stability in the middle of the legal goal desired to be achieved with the tool used, and alternative means other than blocking access should be included. ”
With the decision, it was also decided that the applications before the Constitutional Court would not be evaluated for a period of one year until the Parliament made a regulation.