Resource guide of turkish high court judgments on freedom of expression

limitations on the freedom of expression must be interpreted as conservatively as possible, ensuring that an important or pressing social need is present, the limitation is imposed for a legitimate purpose, over-limitation is avoided, and in any circumstance the limitation is to an extent that does not hinder development. 

In order for limitation or intervention to be acceptable, there must be a legal basis, the limitation must have a legitimate purpose, the reasons for limitation specified in the law must exist, the limitation must be proportionate to the legitimate purpose, and the measure must be 'mandatory' for a democratic society."

CONDITIONS OF LIMITATION
Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014)

“The Constitutional Court will determine whether the interference is required in a democratic society, the essence of the right remains intact, proportionality is observed, and whether a fair balance is established between the freedom of expression and press and the rights and reputations of others depending on the specific properties of each and every incident."

IMPLEMENTATION OF THE 3-STEP TEST WITH REFERENCE TO THE EUROPEAN COURT OF HUMAN RIGHTS

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

“In the opinion of the Ministry, the CD of the film subject to the application was denied to the applicant based on a clear and accessible legal merit in national law, and the refusal can be considered legitimate for the purposes of preventing criminal activity and public security; however, with respect to the requirement of necessity in a democratic society, which must be assessed based on the specific circumstances of each incident, court judgments on the subject in question must also be considered..."

Court of Cassation (Criminal General Council, File Number: 2007/8-244, Judgment Number: 2008/92)

"The conditions sought by the ECHR for the limitation of freedom of expression in accordance with Article 10 of the Convention are:

a- Presence of a legal basis,

b- A legitimate purpose for the limitation,

c- The necessity of limitation for a democratic society,

d- The sanction imposed must be proportionate to the legitimate purpose in line with the principle of prescription in law."

Council of State (13th Chamber, E: 2014/3811)

"Paragraph 2 of Article 10 of the European Convention on Human Rights allows public authorities to subject the exercise of freedom of expression to restrictions and penalties only if they are measures necessary for responding to a pressing social need and are proportionate to the legitimate purposes pursued. Since its first judgments, ECHR interprets "necessary" as used in Article 10 of the Convention as having “a pressing social need." Handyside v. United Kingdom, Application Number: 5493/72, 07.12.1976)”

"In other words, the court is tasked with investigating whether the interference with* freedom of expression corresponded to a 'pressing social need', whether it was proportionate to the legitimate aim pursued, whether the reasons given by the national authorities to justify it are relevant and sufficient. (Sunday Times/United Kingdom, (no1), Application Number: 6538/74, 26.05.1979).”

"Therefore, it is necessary to determine whether the judicial or administrative interference with the freedom of expression was in response to a pressing social need. In this respect, the interference must be proportionate to a legitimate purpose, and secondly, the grounds advanced by public authorities must be relevant and sufficient to establish that the interference was necessary."

"Accordingly, if the limitation is not imposed to respond to a pressing social need or used as a last resort, it cannot be justified with the requirements of a democratic society. Similarly, when investigating the presence of a pressing social need, generalizations and abstractions must be avoided and the capacity of the person making the expression, the identity of the addressed party and their reputation, the content of expression, and whether the expression contributes to a discussion pertinent on the overall benefit to society. (Axel Springer AG v. Germany, Application Number: 39954/08, 07.02.2012; Von Hannover v. Germany (no.2), 40660/08 and 60641/08, 07.02.2012)”

“On the other hand, although freedom of expression is not restricted regarding content, in cases of racism, hate speech, war propaganda, inciting and provoking violence, inciting revolt or justifying terrorist activities where the freedom approaches its boundaries, States have greater discretion in their interference (Gözel and Özer v. Türkiye, Application 43453/04, 31098/05, 06.07.2010; Müslüm Gündüz v. Turkey, Application: 35071/97, 04.12.2003)”

"The mere fact of defending sharia, without calling for violence to establish it, cannot be regarded as “hate speech”. Moreover, the applicant's extremist views were already known and had been discussed in the public arena and, in particular, were counterbalanced by the intervention of the other participants in the program; and lastly, they were expressed in the course of a pluralistic debate in which the applicant was actively taking part. Accordingly, the Court considers that in the instant case the need for the restriction in issue has not been established convincingly. (Müslüm Gündüz v. Turkey, Application: 35071/97, 04.12.2003)”

"Considering the timing of the program and the expressions as a whole, the program intends to clarify an incident in the past and inform viewers about the subject; furthermore, there were other speakers in the program who expressed opinions contrary to those of Müslüm Gündüz, thereby preventing the sharing of one-sided information with the public and/or biased handling of the matter and providing a pluralistic debate environment, as a result of which the limitation imposed by the sanction in question does not correspond to a pressing social need..."

Constitutional Court (Fatih Taş Application: 2013/1461, Judgment Date: 12/11/2014)

"It has been pointed out that determining whether there is an interference with the freedom of expression must be based on whether the interference is prescribed by law, based on legitimate purposes, and is necessary in a democratic society."

INTERFERENCE WITH THE FREEDOM OF EXPRESSION
Constitutional Court (Fatih Taş Application: 2013/1461, Judgment Date: 12/11/2014)

"The applicant is the owner of a publishing house and has the risk of being subject to investigation or legal action in the future due to the expression of thoughts or printing activities, and there is the risk of reopening the deferred investigation that is the subject of the current application. In the event that the investigation is reopened, the applicant is still under threat of being penalized considering that courts of first instance have sentenced the applicant three times in the past for publishing the poetry books in question.

The current application concerns freedom of expression, and the fact that the applicant is under probation creates certain difficulties for the applicant. These difficulties must be considered when determining the applicant's grievance status (cf. Altuğ Taner Akçam v. Turkey, Application: 27520/07, 25/10/2011, § 67). The fear of sanction has a chilling effect on people, and even if there is a possibility of the individual being vindicated of accusations at the end of the process, the chilling effect may prevent the exercise of freedom of expression or engaging in printing activities (for similar conclusions, cf. Lombardo and others v. Malta, Application: 7333/06, 24/4/2007, § 61).  

In conclusion, although the applicant has not yet been convicted due to the books he published, the possibility that a deferred investigation may be reopened in the future will cause stress and worry about being punished. Considering that the applicant has been tried and convicted before and that the sentence was approved by the Court of Cassation, the risk of the applicant being subject to reinvestigation and a subsequent punishment is real. Therefore, it must be accepted that the freedom of expression of the applicant has been interfered with as set forth in Article 26 of the Constitution.” 

PRESCRIPTION IN LAW
Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

“One of the pillars of the rule of law as expressed in Article 2 of the Constitution is “specificity”. Accordingly, legal arrangements must be clear, precise, comprehensible and implementable without any doubt or hesitation on the part of either the state or individuals, and must include safeguards against arbitrary exercise by public authorities. Specificity is tied to legal security, and each individual must be able to learn from the law at an acceptable level of certainty which legal sanction or consequence is associated with which specific acts or events, and what rights of interference are granted to public authorities as a result of such acts and events. Only this will enable the individual to comprehend one's obligations and adjust their conduct appropriately. Legal security means that rules are predictable, individuals can have confidence in the state in all their actions and behavior, and that the state avoids methods that may disrupt this confidence while imposing legal requirements."

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

In their counter opinion to the Ministry statement, the applicant argues that prison inmates are entitled to watch films subject to certain legal conditions; that the applicant was discriminatorily deprived of their right even though they are entitled to the same rights as other inmates; that the administration decided only by referring to the film title when there was no ban in effect for the film and did not discuss whether the security of the institution would be compromised; that the Education Council's reason, namely “political propaganda, secessionary propaganda, praise for certain ideologies” are legally unfounded in letter and substance; that the access to sources of knowledge and works of art for the development of the individual was an inalienable condition of modern democracy; that an inmate's ability to keep informed of outside events is critical for the inmate's development and post-release integration into society, upon which arguments the applicant claims that the interference of the administration with this freedom is disproportionate and in contradiction of the necessities of a democratic society.

LEGITIMACY

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

“In order for an interference with the freedom of expression to be considered legitimate, such interference must have a purpose as specified in Article 26, Paragraph 2 of the Constitution, namely the protection of national security, public order, public safety, the pillars of the Republic and the indivisible unity of the State with the country and nation; prevention of criminal acts; punishment of criminals; protection of information duly classified as State secrets; the protection of the reputation and rights, privacy and domestic lives, or trade secrets of others prescribed by law, or the proper fulfillment of judicial powers.”

NECESSITY IN A DEMOCRATIC SOCIETY

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

“The concept of 'democracy' in the Constitution must be interpreted from a current and libertarian perspective. The criterion of 'necessity in a democratic society' is indicative of the harmony between Article 13 of the Constitution and Articles 9, 10 and 11 of the Convention on the 'requirements of a democratic social order'. Therefore, 'necessity in a democratic society' must be interpreted on the basis of pluralism, tolerance and open-mindedness (Application No: 2013/409, 25/6/2014, § 93).”

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

“Since its earliest judgments, ECHR has been interpreting the concept of 'necessity' in Article 10 Paragraph 2 of the Convention in a manner that is similar to that of the Constitutional Court. According to ECHR, 'necessity' refers to a 'pressing social need' (Handyside/UK, Application No: 5493/72, 7/12/1976, § 48). It therefore falls to be determined whether the judicial or administrative interference with the freedom of expression was in response to a pressing social need. In this respect, the interference must be proportionate and carry a legitimate purpose, and the grounds advanced by public authorities must be relevant and sufficient to establish that the interference was necessary (for a similar interpretation in a different context, cf. Application No: 2013/8463, 18/9/2014, § 56).”

PROPORTIONALITY

Constitutional Court (Emin Aydın Application : 2013/409, Judgment Date: 23/1/2014)

“It has been resolved that the collection of the books based on a sequestration order, which constitutes a protective relief, and the destruction of some of the collected books in violation of the procedure specified in the law is not proportionate to the purpose of the act, and is in violation of the requirements of proportionality and necessity in a democratic society. Therefore, it must be judged that the applicant's freedoms of expressing and disseminating opinions and the freedom of press set forth in Articles 26 and 28 have been infringed."

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

"When imposing interference with the freedom of expression, it must be considered whether the method of interference is feasible, necessary and proportionate to the intended purpose."

Constitutional Court (Özkan Kart Application: 2013/1821, Judgment Date: 5/11/2014)

"Considering the above, it cannot be argued that limiting the number of books an inmate of a high-security prison can keep in their room to 10, as in the case of the applicant, is disproportionate to the objective of ensuring order in the rooms and sections."

PROTECTING THE ESSENCE OF THE RIGHT
Constitutional Court (Nilgün Halloran Application: 2012/1184, Judgment Date: 16/7/2014)

“The Constitutional Court’s case law defines a democratic society: “Democracy is a regime where fundamental rights and freedoms are provided and protected in the widest scope possible. Limitations that alter the essence of fundamental rights and freedoms to render them entirely unusable cannot be justified with the requirements of a democratic social order. Therefore, fundamental rights and freedoms may only be limited in exceptional cases, provided that the essence of the rights remains intact, to the extent necessary for the continuity of democratic public order and when prescribed by law.” (Constitutional Court, E.2006/142, K.2008/148, judgment date 24/9/2008). In other words, if the limitation compromises the essence of the right or freedom, prevents its use or makes it extremely difficult, renders the right or freedom ineffective, or disrupts the balance between the means and outcomes of limitation against the principle of proportionality, this will be in violation of the democratic public order (cf. (Constitutional Court, E.2009/59, K.2011/69, judgment date 28/4/2011; Constitutional Court, E.2006/142, K.2008/148, judgment date 17/4/2008).

The criteria of justification with the requirements of a democratic society and integrity of essence require that limitations on freedom of expressing and disseminating thought are mandatory or exceptional measures and are employed as a last resort. The ECHR defines the requirement of limitation in a democratic society as a "pressing social need." Accordingly, if the limitation is not imposed to respond to a pressing social need or used as a last resort, it cannot be justified with the requirements of a democratic society."

Constitutional Court (Ali Karatay Application: 2012/990, Judgment Date: 10/12/2014)

"If the limitation imposed compromises the essence of the right or freedom, prevents its use or makes it extremely difficult, renders the right or freedom ineffective, or disrupts the balance between the means and outcomes of limitation against the principle of proportionality, this will be in violation of the necessities of a democratic public order."

DEFAMATION
RIGHT TO PROTECT PERSONAL REPUTATION

Constitutional Court (İlhan Cihaner Application: 2013/5574, Judgment Date: 30/6/2014)

"The personal dignity and reputation of the individual falls within scope of ‘spiritual existence’ as explained in Article 17 of the Constitution. The State is obliged to refrain from arbitrary interference in an individual's personal dignity and reputation, which form a part of the individual's spiritual existence, and to prevent attacks from third parties. (Application: 2013/1123, 2/10/2013, § 33). In other words, an individual's right to protection of personal reputation is guaranteed by Article 17 Paragraph 1 of the Constitution, and the failure to protect an individual against verbal attacks on dignity and reputation as well as public denouncements of the same through the media and publications may constitute a violation of said Article 17 Paragraph 1.

ECHR considers interference in personal dignity and reputation within Article 8 - Right to respect for private and family life of the European Convention on Human Rights ("Convention"). According to ECHR, the right to protect personal reputation is part of the right to respect for private life explained in Article 8 of the Convention (cf. X ve Y/The Netherlands, Application No: 8978/80, 26/3/1985, § 22; Pfeifer/Austria, Application No: 12556/03, 15/11/2007 § 35; Axel Springer AG/Germany, Application No: 39954/08, 7/2/2012, § 83). Similarly, the right to protect an individual's reputation against defamatory newspaper articles (White/Sweden, Application No: 42435/02, 19/12/2006, § 19 and 30), and the claim that an individual was not protected against a critical newspaper article (Minelli/Switzerland, (kk), Application No: 14991/02, 14/06/2005) were considered within the scope of private life.

Even if criticized in a public discussion and through printed articles, an individual's reputation is part of that individual's reputation, personal identity and moral integrity (cf. Pfeifer/Austria, § 35) and is under the protection of Article 17 Paragraph 1 of the Constitution.

On the other hand, in order for Paragraph 1 Article 17 of the Constitution to apply to a case, the attack against personal reputation must have a certain degree of severity and have the effect of violating the applicant's right to claim protection of personal reputation (cf. Mater/Turkey, Application No: 54997/08, 16/7/2013, § 52).

Predictably, Article 17 cannot be invoked to complain about a loss of reputation due to an individual's own actions (cf. Mater/Turkey, Application No: 54997/08, 16/7/2013, § 52).”

Constitutional Court (Emin Aydın Application: 2013/2602, Judgment Date: 23/1/2014)

"The dignity and reputation of the individual fall within the 'spiritual existence' as explained in Article 17 of the Constitution. The State is obliged to refrain from arbitrary interference in an individual's dignity and reputation, which form a part of the individual's spiritual existence, and to prevent attacks from third parties. Attacks against dignity and reputation by third parties can be in the form of, inter alia, audiovisual broadcasts. Even if criticized in audiovisual broadcasts of a public discussion, an individual's dignity and reputation are a part of that individual's spiritual existence."

Constitutional Court (Adnan Oktar Application: 2013/1123, Judgment Date: 2/10/2013)

"The dignity and reputation of the individual falls within the 'spiritual existence' as explained in Article 17 of the Constitution. The State is obliged to refrain from arbitrary interference in an individual's dignity and reputation, which form a part of the individual's spiritual existence, and to prevent attacks from third parties. Attacks against dignity and reputation by third parties be in the form of, inter alia, audiovisual broadcasts. Even if criticized by audiovisual broadcasts of a public discussion, an individual's dignity and reputation are parts of that individual's spiritual existence (for a similar ECHR judgment, cf. Pfeifer/Austria, 12556/03, 15/11/2007, § 35).

The State is required to strike a balance between its positive obligations to protect the individual's dignity and reputation and the counterparty's Constitutional right to freedom of expression (for a similar ECHR judgment, cf. Von Hannover/Germany (no.2) [BD], 40660/08 and 60641/08, 7/2/2012, § 99).

The State's positive obligation to build effective mechanisms against attacks by third parties on the tangible and spiritual existence of individuals does not necessarily require criminal investigations and proceedings. It is also possible to protect an individual against unlawful interference by third parties through civil procedure. Turkish law offers both criminal and civil protection to individuals in cases of attacks against dignity and reputation. Defamation is classified as a crime in criminal law and an unlawful act in private law, and may be subject to claims for damages. Therefore, an individual can seek civil recourse against an alleged act of interference in the individual's dignity and reputation by third parties."

PUBLICATION OF PERSONAL INFORMATION AND DEFAMATION

Court of Cassation (Criminal General Council, File Number: 2012/12-1510, Judgment Number: 2014/331)
"The act of posting the intervener's photograph appearing in the column the intervener writes for a newspaper on a friendship website by the accused, who is the editor-in-chief of the newspaper where the intervener writes, without the intervener's consent constitutes the crime of unlawful publication of personal information as explained in Article 136 of the Turkish Criminal Code; the resolution to overturn the judgment based on an assessment and determination of the legal circumstances is unlawful, and the act is of a nature that defames, offends and harms the reputation of the individual, which constitutes the crime of defamation by publication.

Since Articles 135 and 136 of the Turkish Penal Code on the protection of personal information do not contain any provisions stating that only confidential personal information must be protected and, to the contrary, the rationale for Article 135 states that any and all information pertaining to a real person must be considered personal information, the acts of sharing, disseminating or acquiring any and all personal information must constitute the crime defined in Article 136 of the Code. With regard to the case in question, the act of the accused, who is the editor-in-chief of the newspaper where the intervener writes a column, to post the intervener's photograph used in the column on a friendship website without providing any identity, address or telephone information, and with the note that the intervener is looking for a male friend, has no legal basis; therefore, there is no doubt that this act is unlawful and constitutes the criminal act of unlawfully disseminating personal information set forth in Article 136 of the Turkish Criminal Code.

Additionally, the act of the accused is of a nature that may damage the dignity, honor and reputation of the intervener, thus constituting the act of public defamation pursuant to Article 125 Paragraphs 1 and 4 of the Constitution.