Türkiye’s Freedom of Expression: Progress Made, Challenges Remain

As media pluralism diminishes and government control increases in Türkiye, ordinary citizens are increasingly turning to online platforms, particularly online news outlets and social media platforms, to stay informed about the real economic, social, and political conditions affecting the country. Unsurprisingly, this growing dependence and reliance on online platforms has drawn the attention of the regime, whose power relies on silencing dissent, suppressing truth, and censoring independent media. Against this backdrop, the Turkish government has employed various tactics over the last decade, including content or website access blocking and removal, bandwidth restrictions, and internet throttling to censor critical media and quell government criticism. 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 Türkiye. These decisions are imposed by various authorities, most effectively through recourse mechanisms before the criminal judgeships of peace, which are carefully framed within the legal system.

In this challenging environment, online platforms and civil society groups have the vital responsibility of challenging legal instruments and decisions used to restrict online speech and information access. Although this requires significant time, resources, and resilience, it serves as a beacon of hope, gradually repairing a crack in a crumbling wall. This was recently demonstrated in two landmark rulings from the Turkish Constitutional Court, Abdullah Kaya and Others (alongside 503 consolidated cases) and another case brought by 131 opposition party parliamentarians. In these rulings, the court concluded that the structural problems surrounding Article 9 of Law No. 5651 (widely known as the “Internet Law”), which authorizes criminal judgeships of peace to issue access-blocking and content removals without considering freedom of expression implications, were not addressed by the legislative branch. As a result, the court deemed the article unconstitutional and subsequently abolished it.

There were no shortcuts to success. Take Automattic, parent company of WordPress.com and Tumblr, for instance. It brought the claim in conjunction with one of its users in the consolidated cases under the Abdullah Kaya and Others judgment, defending the freedom of expression interests of its users throughout a seven-year legal battle in domestic courts. Steve Blythe, Head of Legal Process at Automattic, emphasizes the importance of enduring lengthy legal processes and exhausting all available legal avenues to uphold freedom of expression principles against access restriction decisions:

We are increasingly seeing the fragmentation of access to information as a direct result of national legislation and legal judgments concerning speech. Platforms are often the final line of defense for freedom of expression online, and as a result have a responsibility to stand up for those fundamental rights. I am both pleased and proud that Automattic stood by our core values and managed to secure a victory in this case, but the length of the proceedings and political realities involved clearly demonstrate that there remains a significant amount of work to be done.

Role of Criminal Judgeships of Peace in Access-blocking and Content Removal

Following the December 17-25, 2013 corruption investigations, two access-blocking measures were swiftly incorporated into the Internet Law. Article 9 mandated access-blocking and content removal to prevent violations of personal rights, while Article 9/A allowed for similar measures to protect the confidentiality of private life. Requests by individuals and organizations are to be reviewed by criminal judgeships of peace within 24 hours under Article 9 and 48 hours under Article 9/A, without holding any adversarial hearings. If granted, these requests are executed through the entity called Association of Access Providers, which can take further action against other internet addresses hosting similar content. Appeals against access-blocking decisions could be made to another criminal judgeship of peace with the next sequential number, again without any adversarial hearings. These decisions would become final, with no appeal to a higher court possible, except for the option to launch an individual application before the Constitutional Court.

Both Articles have been extensively used by public figures and government-affiliated organizations, who claim that access-blocking or content removal measures are necessary to safeguard their damaged reputations and dignity. However, politically motivated requests have almost never been denied by criminal judgeships of peace, which consistently disregard the substantial analysis of the requests and the implications for 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 decisions issued by 543 separate judgeships under Article 9 alone. Notably, these enforcement measures are not necessarily limited to specific content but are imposed broadly, leading to complete platform or website blocks, which in the past has resulted in all visitors from the country being unable to access any of the 200+ million sites on WordPress.com, for example.

Restoring Efforts to Balance Personal Rights and Freedom of Expression

The Turkish Constitutional Court addressed Article 9 of the Internet Law in its October 2017 Ali Kidik judgment. It concluded that access-blocking decisions should be considered not as penal or administrative sanctions but as protective measures. These measures are to be used only as an exceptional legal remedy in cases of a prima facie violation of personal rights.

However, this judgment did not alter the practice followed by criminal judgeships of peace. The increasing number of individual complaints led the Constitutional Court to reassess Article 9's legality in its January 2022 pilot judgment of Keskin Kalem Yayıncılık ve Ticaret A.Ş. and Others. The Court identified systematic and structural problems originating from Article 9 itself and found that the provision lacked clear guidance on how criminal judgeships of peace should exercise their authority, resulting in arbitrary and disproportionate interference with freedom of expression and the press. The structural problems include:

• (i) Access-blocking measures are not applied only in circumstances where there is a prima facie privacy violation of personal rights;
• (ii) Criminal judgeships of peace failed to balance freedom of expression and personal rights by not allowing online platforms and content authors to defend themselves during the initial assessment and appeal procedures; and,
• (iii) The provision does not offer less intrusive measures, such as providing explanations, responses, corrections, or content renewal. Instead, it allows only severe measures like access-blocking and/or content removal, regardless of the nature or severity of the infringements on personal rights.

The Court recommended that the Turkish Parliament address these structural problems and postponed the evaluation of similar individual applications for one year. However, the Parliament ignored these recommendations in the late 2022 amendments to Article 9, leaving the structural issues unresolved.

The Constitutional Court waited nearly two years for legislative amendments or changes in the practices of criminal judgeships of peace, in line with its recommendations to resolve systematic and structural problems. Eventually, the Court rendered decisions on two cases impacting the fate of Article 9 of the Internet Law. On November 22, 2023, in Abdullah Kaya and Others, the Court ruled that there was a violation of freedom of expression in 503 consolidated cases because no measures had been taken to address the identified structural problems after the Court’s pilot judgment. Then, on January 10, 2024, in a case brought by 131 opposition party parliamentarians, the Court declared Article 9 of the Internet Law unconstitutional. The annulment of Article 9 will take effect nine months after the publication date, on October 10, 2024.

Old Habits Die Hard

One might assume that the criminal judgeships of peace would cease issuing access-blocking and/or content removal decisions based on Article 9 of the Internet Law, or at least consider the interests of online platforms and content authors, especially after the article was deemed unconstitutional. However, this is simply not the case in Turkish politics and courtrooms. The criminal judgeships of peace continue to issue access-blocking and/or content removal decisions based on Article 9 of the Internet Law, despite its unconstitutional status. This comes as no surprise to many, especially after President Recep Tayyip Erdoğan expressed his discomfort with the Constitutional Court's internet-related decisions and announced his intention to closely monitor them.

While a new, more nuanced provision similar to Article 9 is likely to be enacted during the transition period, it's important to note that Article 9 was not the only legal tool for access-blocking and content removal decisions.

Article 8 of the Internet Law allows for access-blocking and content removal in cases where there is sufficient suspicion that the content constitutes crimes and offenses defined under the Criminal Code, such as incitement to suicide, provision of substances dangerous to health, and obscenity. Article 8/A of the Internet Law, on the other hand, permits access-blocking and content removal where delay would entail risk. This article gained prominence when Wikipedia was blocked in Türkiye for two and a half years. The Prime Minister's Office requested the Information and Communication Technologies Authority (the Authority) to remove two items 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 this was a violation of freedom of expression. However, this judgment did not change the practices of criminal judgeships of peace. Besides, since 2020, the Constitutional Court has not considered any applications regarding Article 8/A or initiated a pilot judgment to address structural problems. As a result, by the end of 2022, more than 25,573 internet addresses, including over 2,860 news websites and domain names, as well as more than 775 news articles, 3,600 Twitter accounts, 4,700 tweets, 600 Facebook posts, and 1,900 YouTube videos, were blocked under Article 8/A of the Internet Law.

Looking Ahead: Building Momentum

A recent victory for freedom of expression in front of the Turkish Constitutional Court is a promising step forward, but it also highlights the long journey ahead. While this achievement is worth celebrating, the challenge is far from over. Indeed, Türkiye is ranked 139th among 161 countries in ARTICLE 19’s Global Expression Report 2024, indicating that individuals are still living through a freedom of expression crisis. Given the current restrictive climate, online platforms must stay resilient and vigilant, continuing to challenge legal instruments that threaten freedom of expression. They should actively engage with lawmakers and advocate for the protection of digital rights. By doing so, they can help ensure that the internet remains a free and open space for all. This recent victory in Türkiye should serve as an inspiration to keep fighting, encouraging platforms to face future legal obstacles with determination and perseverance.

Opinions expressed here are solely the author’s and do not reflect or express the views or opinions of his employer or affiliates.