As media diversity declines and government control in Turkey increases, ordinary citizens increasingly turn to online platforms, especially online news outlets and social media platforms, to get a sense of the economic, social, and political realities in the country. Naturally, this growing reliance and dependency on online platforms has attracted the attention of regimes that seek to rise to power by silencing dissent, suppressing the truth, and censoring independent media. Against this backdrop, over the past decade, the Turkish government has adopted a variety of tactics to censor critical media and stifle criticism of the government, including blocking and removing content and access to websites, limiting bandwidth, and throttling internet speeds. By the end of 2022, a total of 712,558 websites and domain names, access to 150,000 URL addresses, 9,800 Twitter accounts, 55,000 tweets, 16,585 YouTube videos, 12,000 Facebook posts, and 11,150 Instagram posts were blocked in Turkey. These decisions are imposed by a variety of authorities, most effectively through a mechanism of appeal to criminal justices of the peace that is carefully frameworked within the legal system.
In this challenging environment, online platforms and civil society organizations bear a significant responsibility to challenge legal measures and decisions used to restrict online speech and access to information. This will require significant time, resources, and patience, but it is a ray of hope that will gradually repair the cracks in the crumbling wall. This was recently exemplified by two landmark decisions by the Turkish Constitutional Court: Abdullah Kaya and Others (alongside 503 consolidated cases) and another case brought by 131 opposition lawmakers. In these decisions, the Court concluded that the structural issues surrounding Article 9 of Law No. 5651 (commonly known as the Internet Law), which gives the Criminal Justices of the Peace the power to issue orders to block access and remove content without considering the impact on freedom of expression, had not been addressed by the legislature. As a result, the Court deemed the Article unconstitutional and subsequently repealed it.
There were no shortcuts to success. Take Automattic, the parent company of WordPress.com and Tumblr. The company joined forces with one of its users in the consolidated Abdullah Kaya and Others cases and defended its users’ right to freedom of expression through a seven-year legal battle in national courts. Steve Blythe, Automattic’s head of legal proceedings, emphasizes the importance of enduring a lengthy legal process and exhausting all available legal avenues to defend the principles of freedom of expression against decisions to restrict access:
“Access to information is increasingly fragmented as a direct result of national laws and legal rulings regarding speech. Platforms are often the last bastion of freedom of expression online and, as a result, have a responsibility to uphold these fundamental rights. We are pleased and proud that Automattic was able to defend our core values and win this case, but the length of the litigation and the political realities make it clear that there is still much work to be done.”
The role of criminal justices of the peace in blocking access and removing content
Following the corruption investigations carried out between 17 and 25 December 2013, two access blocking measures were quickly incorporated into the Internet Law. Article 9 requires access blocking and content removal to prevent violations of individual rights, while Article 9/A allows similar measures to protect the confidentiality of private life. Requests from individuals and organisations are reviewed by criminal magistrates without adversarial hearings, within 24 hours under Article 9 and 48 hours under Article 9/A. If the requests are granted, they are carried out through an organisation called the Association of Access Providers, which can take further measures against other internet addresses hosting similar content. Appeals against access blocking decisions can be made to another criminal magistrate with the next serial number, again without adversarial hearings. These decisions are final and cannot be appealed to higher courts, except for the option of filing an individual petition with the Constitutional Court.
Both articles have been widely used by public figures and government-affiliated organizations who claim that blocking access or content removal measures are necessary to avoid harming their honor or dignity. However, politically motivated requests have rarely been rejected by criminal magistrates, who have always ignored the substantive analysis of the requests and their impact on freedom of expression. As a result, between 2014 and 2022, 35,023 news articles were blocked and 29,253 news articles were removed or deleted based on 543 separate magistrate decisions based solely on Article 9. It is noteworthy that these enforcement measures are not always limited to specific content but are broadly imposed, leading to the complete blocking of platforms and websites, and in the past preventing all visitors from the country from accessing any of WordPress.com’s more than 200 million sites, for example.
A return to balancing individual rights and freedom of expression
The Turkish Constitutional Court, in its Ali Kidik ruling of October 2017, addressed Article 9 of the Internet Law and concluded that access blocking decisions should be considered as protective measures, rather than criminal or administrative sanctions. These measures are used as an exceptional legal remedy only in cases where individual rights are seemingly violated.
However, this ruling did not change the practice of peaceful criminal judges. Due to an increase in complaints from individuals, the Constitutional Court reevaluated the legality of Article 9 in the case of Keskin Kalem Yayıncılık ve Ticaret A.Ş. and others in January 2022. The Court identified systemic and structural problems resulting from Article 9 itself, determining that the article lacks clear guidelines on how peaceful criminal judges should exercise their powers, resulting in arbitrary and disproportionate interference with freedom of expression and the press. Structural problems include:
(i) Access blocking measures are not only applicable in situations where there is a prima facie privacy violation of individual rights; (ii) peacetime criminal trials have failed to balance freedom of expression and individual rights by not allowing online platforms and content creators to defend themselves during the initial evaluation and appeal procedures; (iii) the provision does not provide for less invasive measures such as explanations, responses, corrections and content updates; instead, it only allows for severe measures such as access blocking and content removal, regardless of the nature and severity of the violation of individual rights.
The Court recommended that the Turkish Parliament address these structural issues and postponed the consideration of similar individual applications for one year, but Parliament ignored these recommendations in amending Article 9 in late 2022, leaving the structural issues unresolved.
The Constitutional Court waited nearly two years for legal reforms and changes to the practice of criminal magistrates in line with its recommendations to resolve institutional and structural problems. Finally, the Court ruled on two cases that affect the fate of Article 9 of the Internet Law. On November 22, 2023, in the Abdullah Kaya Case and Other Cases, the Court ruled that freedom of expression was violated in 503 consolidated cases because measures were not taken to address structural problems identified after the Court’s pilot rulings. Then, on January 10, 2024, in a case brought by 131 opposition lawmakers, the Court declared Article 9 of the Internet Law unconstitutional. The nullification of Article 9 will take effect on October 10, 2024, nine months after the date of promulgation.
Old habits die hard
One might assume that peacetime criminal judges would stop issuing block and content removal decisions based on Article 9 of the Internet Law, or at least consider the interests of online platforms and content creators, especially after the article was found to be unconstitutional. However, this is not the case in Turkish politics or courts. Peacetime criminal judges continue to issue block and content removal decisions based on Article 9 of the Internet Law, despite it being unconstitutional. This is not surprising to many, especially after President Recep Tayyip Erdogan expressed his displeasure with the Constitutional Court’s internet-related decisions and announced his intention to closely monitor them.
It is likely that new, more nuanced provisions similar to Article 9 will be enacted during the transitional period, but it is important to keep in mind that Article 9 was not the only legal tool for decisions to block access or remove content.
Article 8 of the Internet Law allows for access blocking and content removal if there is sufficient suspicion that the content constitutes a crime or illegal act defined in the Criminal Code, such as incitement to suicide, provision of substances harmful to health, or obscenity. Meanwhile, Article 8/A of the Internet Law allows for access blocking and content removal if delay would entail risks. This provision attracted attention when Wikipedia was blocked in Turkey for two and a half years. The Prime Minister’s Office asked the Information and Communications Technology Agency (the Authority) to remove two pieces of content from the site, citing threats to public order and national security. Instead, the Authority blocked access to the entire website until the Constitutional Court ruled that it was a violation of freedom of expression. However, this ruling did not change the practice of criminal trials of the peace. Moreover, since 2020, the Constitutional Court has not considered applications regarding Article 8/A or initiated pilot rulings to address structural issues. As a result, by the end of 2022, more than 25,573 Internet addresses, including more than 2,860 news websites and domain names, as well as more than 775 news articles, more than 3,600 Twitter accounts, 4,700 tweets, 600 Facebook posts and 1,900 YouTube videos, had been blocked under Article 8A of the Internet Law.
Looking to the future: building momentum
The victory for freedom of expression at the Turkish Constitutional Court is a promising step, but it also highlights the long road ahead. While this achievement is worth celebrating, the challenges are not over yet. In fact, Turkey ranks 139th out of 161 countries in ARTICLE 19’s 2024 World Expression Report, indicating that individuals still face a crisis in freedom of expression. Given the current restrictive environment, online platforms need to remain resilient and vigilant and continue to challenge legal measures that threaten freedom of expression. Platforms should actively engage with legislators and advocate for the protection of digital rights. In doing so, they can ensure that the Internet remains a free and open space for all. Turkey’s recent victory should serve as inspiration to keep fighting and encourage platforms to face future legal obstacles with determination and perseverance.
The opinions expressed herein are the author’s own and do not necessarily reflect or represent the views or opinions of the author’s employer or affiliates.
