With the pilot judgement published by the Constitutional Court on 07.01.2022, a readjustment was made within the scope of the Law No.
5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of such Publications (“
Law”), and it was called for interference to be made in online broadcasts to be in accordance with the requirements of a democratic social order.
The Constitutional Court examined the individual application of Keskin Kalem Yayıncılık ve Ticaret AŞ. and others at the Plenary of the Constitutional Court dated 27.10.2021. The Court ruled that the applicants' "
freedoms of speech and press" regulated in Articles 26 and 28 of the Constitution and their "
right to an effective remedy" regulated in Article 40 of the Constitution had been violated. 9 applications made on the subject were combined by the Constitutional Court and a pilot judgment was given.
The subject of the judgment is the applications that the applicants' freedoms of expression and press and their right of effective remedy have been violated due to the decisions of the criminal peace judgeships to block access to 129 news on a website of a newspaper broadcasting on a national scale and some internet news sites pursuant to Article 9 Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of such Publications.
It was decided upon by the Constitutional Court that the applicant's freedom of speech and press was violated for the following reasons: the justified decisions given by the criminal peace judgeships contain general statements that are independent of the circumstances of the concrete case, it was not comprehensible how a clear and prima facie determination of a violation of personal rights violation by subject internet publications was established, the petitions and claims submitted by the applicants in the objections were not examined by the judges reviewing the objections, the news subject to the concrete applications being indefinitely blocked and the decisions given as a precautionary measure having an indefinite effect.
The Constitutional Court considered that although the applicants petitioned to the objection authorities against the decisions of blocking access, their right to an effective remedy was violated because the objection authorities did not consider the claims and evidence of the applicants.
The most significant aspect of the decision is that it considers that the violation is due to the way the Law is regulated. In the judgment, it was stated that the judgments of the courts of first instance, given within the scope of Article 9 of Law No. 5651, pointing to the existence of a systematic problem, demonstrated that they directly resulted from the provision of the law. To prevent similar new violations, a call was made to the legislative power to reconsider the current system in our country. In addition, it was emphasized that it would be beneficial to "
consider the minimum standards" in new legal regulations to be made so that the interference in the online media "
conforms to the requirements of the democratic social order" in accordance with the Article 13 of the Constitution and does not cause a violation of the Article 26 of the Constitution.
Bahar Esentürk, Associate
Selma Esen, Associate