Türkiye’s Constitutional Court Decides in Favour of Online Freedom of Speech

12-01-2024

İrem Çakmak

Middle East and Human Rights Researcher

Global Human Rights Defence

Türkiye’s Constitutional Court has repealed the article, which serves to enact measures of access blocking to online content, on the basis of its infringement upon “individual rights” with a decision dated 11/10/2023 numbered E. 2020/76. [1] Article 9 of Law No. 5651, subject to the decision, granted extensive power to criminal judgeships of peace to issue decisions regarding access blocking and content removal. [2]

After establishing that the law which allows the content on the internet to be blocked ‘indefinitely’ restricted freedom of speech and freedom of the press, the Court found that the law ‘constitutes a severe intervention into the freedom of expression and the press’ for the aim of the law is achievable through less intrusive methods, as well as the fact that the law lacks the procedural guarantees against the arbitrary use of discretion of public authorities. [3] 

Regarding the broad powers of the Information and Communications Technologies Authority (“ICTA”), the institution overseeing the telecommunications sector on a national level, the Court ruled that bans imposed based on decisions of ICTA violated the presumption of innocence. The Court observed that the decision for an access blocking order is not subject to judicial review during the criminal investigation, and the order remains in effect even if the trial concludes with a verdict other than a conviction. [4]

According to the Freedom House, internet freedom in Türkiye is deteriorating swiftly due to intense censorship and criminalization. [5] 712.558 websites are blocked from Türkiye as of the end of 2022, while 137.717 websites were blocked during 2022, a substantial increase is observed compared to previous years (2021: 107.714, 2020: 58.872, 2019: 61.383, 2018: 94.601). [6]

In the 2023 index, Reporters Without Borders notes that internet censorship and arbitrary criminal proceedings against critical voices resulted in widespread corruption. [7] In October 2022, the government passed a ‘censorship law’ only seven months prior to the presidential and parliamentary elections, tightening the grip on the internet. [8] A deadly ban was imposed on Twitter to silence the voices criticising the slow response from the government, after the February Earthquakes, cutting down the main source of communication between earthquake survivors, their loved ones, and the aid teams. [9] The pressure increased during and after the presidential and parliamentary elections in May, preventing the opposition parties from finding a platform and access to accurate, independent information regarding the elections. [10] 

In the current atmosphere, the Constitutional Court’s decision to limit the powers of the ICTA is a step forward towards internet freedom in Türkiye. However, it must be noted that the annulment decision of the Constitutional Court will not enter into force for another nine months, during which the local elections with high stakes will take place.

Sources and further reading

[1] Turkish Constitutional Court, E. 2020/76 K. 2023/172 11/10/2023.

[2] Statute No. 5651 Article, (04/05/2007), <https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=5651&MevzuatTur=1&MevzuatTertip=5#:~:text=MADDE%209%2FA%2D%20> accessed January 12, 2024.

[3] Turkish Constitutional Court, E. 2020/76 K. 2023/172 11/10/2023, para 98. 

[4] Turkish Constitutional Court, E. 2020/76 K. 2023/172 11/10/2023, para 86. 

[5] Freedom House, ‘Freedom of Net 2023 - Turkey’ (Date not indicated) <Freedom of Net 2023 - Turkey> accessed January 12, 2024.

[6] Yaman Akdeniz and Ozan Güven, İfade Özgürlüğü Derneği, ‘EngelliWeb 2022: The Constitutional Court in the Shadow of Criminal Judgeships of Peace’ (July 2023) <https://ifade.org.tr/reports/EngelliWeb_2022_Eng.pdf> accessed January 1, 2024.

[7] Reporters Without Borders, ‘Türkiye’ (Date not indicated) <Türkiye> accessed January 12, 2024.

[8] Human Rights Watch, ‘Turkey: Dangerous, Dystopian New Legal Amendments’ (October 14, 2022) <Turkey: Dangerous, Dystopian New Legal Amendments> accessed January 12, 2024.

[9] Balkan Insight, ‘Turkey Blocks Twitter After Public Criticism of Quake Response’ (February 8, 2023) <Turkey Blocks Twitter After Public Criticism of Quake Response> accessed January 12, 2024.

[10] Human Rights Watch ‘Turkey’s Control of the Internet Threatens Election’ (May 10, 2023) <Turkey’s Control of the Internet Threatens Election> accessed January 12, 2024.