The conditions
governing the removal of online content are set forth in Articles 8 and 9 of
Law Nr. 5651, while the mechanisms of access blocking or content removal for
the purpose of remedying violations of personal rights committed through the
internet are set out under Article 9 of the same Law. Pursuant to these
provisions, the removal of online content or the blocking of access to the
specific section (URL) of the website on which such content is published may be
ordered on several grounds, including the violation of personal rights; the
commission of a criminal offence; the infringement of the right to privacy; the
infringement of rights protected under the Law Nr. 5846 on Intellectual and
Artistic Works; the exercise of the right to be forgotten in the online
environment; and considerations of public interest and public order. These
grounds are not subject to the principle of numerus clausus and may therefore
be assessed in light of the circumstances of each individual case.
With regard to
the scope of application of Article 9 of Law Nr. 5651, it has been argued that
the provision is applicable only where it is immediately apparent, at first
glance, that a publication clearly violates an individual's personal rights.
Where the alleged violation of personal rights is not manifestly evident, it is
maintained that the judge should refrain from ordering the removal of the
content or the blocking of access under Article 9; otherwise, such an order may
result in violations of the freedom of expression and the right to a fair trial
(Kemal Gözler, “Kişilik Haklarını İhlal Eden İnternet Yayınlarının
Kaldırılması Usûlü ve İfade Hürriyeti: 5651 Sayılı Kanun’un 9’uncu Maddesinin
İfade Hürriyeti Açısından Değerlendirilmesi (Procedure for the Removal of
Internet Publications Violating Personal Rights and Freedom of Expression: An
Evaluation of Article 9 of Law Nr. 5651 from the Perspective of Freedom of
Expression)”, Legal Law Journal 1, Special Issue in Honor of Rona Aybay,
(December 2014): 1060)
The provision
in question has been the subject of considerable debate with respect to the
balance between the protection of personal rights and the freedom of the press.
As a result of these discussions, the Constitutional Court, by its judgment,
dated 20.11.2023 and bearing the Basis number 2020/76 and the Decision number 2023/172),
annulled Article 9 of Law Nr. 5651 on the Regulation of Publications on the
Internet and Combating Crimes Committed by Means of Such Publications, which
governs violations of personal rights. In its judgment, the Constitutional
Court held that the application of Article 9 of Law No. 5651 was marked by
significant ambiguities and that such ambiguities could enable judicial
authorities to render arbitrary decisions. The Court further found that the
resulting disproportionate restrictions on the freedom of expression and the
freedom of the press were liable to produce consequences incompatible with the
requirements of a democratic society. Accordingly, the Constitutional Court
concluded that Article 9, which sets out access-blocking orders and the removal
of online content on the grounds of violations of personal rights, lacked the
requisite legal certainty, was capable of giving rise to arbitrary judicial
decisions, and imposed disproportionate restrictions on the freedoms of
expression and the press. On these grounds, the Court annulled Article 9 of Law
Nr. 5651 in its entirety.
As a
consequence of the aforementioned annulment decision, individuals seeking
judicial remedies against violations of personal rights committed in the online
environment will be required to file a complaint and/or bring an action for
damages before the competent courts under adversarial judicial proceedings.
Furthermore, Article 9/A of Law Nr. 5651 sets out the individual application
procedure to the Information and Communication Technologies Authority regarding
violations of privacy. Pursuant to this provision, an individual application
may be submitted to the Information and Communication Technologies Authority
concerning online content alleged to violate the right to privacy by following
the relevant steps through the e-Government system.
Article 9/A of
Law Nr. 5651 reads as follows:
“(1) Persons
claiming that their right to privacy has been violated due to content published
on the internet may directly apply to the Authority and request the
implementation of an access-blocking measure in relation to such content.
(2) In such a
request, the full address (URL) of the publication giving rise to the violation
of the right, an explanation of the grounds on which the right has been
violated, and information evidencing the applicant’s identity must be provided.
Where such information is incomplete, the request shall not be processed.
(3) The
Authority shall immediately notify the Association of the request for the
implementation of the measure, and access providers shall comply with such
request without any delay and, in any event, no later than four hours.
(4) The
access-blocking measure shall be implemented by blocking access to the relevant
content (identified by its URL), including the publication, section, part,
image, or video that violates the right to privacy.
(5) Persons
requesting access blocking shall submit their request, based on the allegation
that the right to privacy has been violated due to content published on the
internet, to the esteemed judge’s office of the court of peace for a decision
within twenty-four hours as of the time of filing the request. The judge shall
assess whether the right to privacy has been violated due to the content
published on the internet and shall render a decision within no later than
forty-eight hours, which shall be transmitted directly to the Authority.
Otherwise, the access-blocking measure shall automatically cease to have effect.”
At this stage,
persons applying to the Information and Communication Technologies Authority
with a request for access blocking are required to submit, within twenty-four
hours following the acceptance of their application by the Authority, the full
internet addresses (URLs) they have identified as the basis for the alleged
violation of the right to privacy to the esteemed judge’s office of the criminal
court of peace for a decision. The judge of the criminal court of peace is
required to assess whether the right to privacy has been violated due to the
content published on the internet and to render its decision within no later
than forty-eight hours, transmitting it directly to the Authority. Otherwise,
the access-blocking measure imposed by the Information and Communication
Technologies Authority shall automatically cease to have effect.
Although the
Constitutional Court’s judgment may be regarded as highly comprehensive and
expansive in terms of freedom of expression and freedom of the press, it may
also lead to particularly serious consequences for individuals whose personal
rights have been violated. Indeed, as a result of the annulment decision
rendered by the Constitutional Court, the new regulatory framework introduces a
two-stage application system, requiring an initial application to the
Information and Communication Technologies Authority, followed by an
application to the esteemed judge’s office of the criminal court of peace.
Furthermore, since individuals seeking remedies against violations of personal
rights in the online environment are now required to resort to adversarial
judicial proceedings, namely by filing a complaint and/or bringing an action
for damages, their ability to obtain urgent remedies for the protection of
their rights has been hindered.
Moreover, since
the new regulation has expanded the boundaries of freedom of the press, it is
evident that the current issues of misinformation on social media, the rapid
dissemination of news, and the resulting stigmatization of individuals before
society may reach a point capable of causing irreparable harm to those
individuals. Accordingly, considering that the judgment in question may delay
individuals’ access to legal remedies and prejudice their right to a trial
within a reasonable time, it may be argued that the regulation could undermine
the very essence of the protection it seeks to provide.
Att. Merve
Hilal Menteş
References:
1. Decision,
dated 20.11.2023 and bearing the Basis number 2020/76 and the Decision number 2023/172,
of the Constitutional Court
2. Kemal Gözler,
“Kişilik Haklarını İhlal Eden İnternet Yayınlarının Kaldırılması Usûlü ve İfade
Hürriyeti: 5651 Sayılı Kanun’un 9’uncu Maddesinin İfade Hürriyeti Açısından
Değerlendirilmesi (Procedure for the Removal of Internet Publications
Violating Personal Rights and Freedom of Expression: An Evaluation of Article 9
of Law Nr. 5651 from the Perspective of Freedom of Expression)”, Legal Law
Journal 1, Special Issue in Honor of Rona Aybay, (December 2014): 1060)
