The Constitutional Court, with its decision numbered 2016/165 E, 2017/76 K. and dated 15 March 2017, rejected Istanbul 2nd Criminal Court of First Instance's application for partial annulment of Article 14 of Press Law No. 5187 ("Press Law"), which regulates the obligation of publishers to publish corrections and reply texts in certain cases. According to Article 14 of the Press Law, in cases concerning a published statement (i) where the reputation or honor of an individual is damaged, or (ii) where there are unfounded allegations about an individual, the liable manager of the relevant periodical will be obligated to publish a correction or reply sent by the libeled party. Moreover, the text of the correction or reply must be published on the same page and column as the original offending article. If the liable manager and the editor reporting to the liable manager fail to comply with a judge's order to publish a reply and correction text, these persons may be subject to a fine, pursuant to Article 18 of the Press Law.
Istanbul 2nd Criminal Court of First Instance requested the annulment of the obligation to publish the correction and reply text on the same page and column as the original offending article. The court suggested that editorial matters, such as the contractual obligation to publish an advertisement on these pages or the inconvenience of rearranging the contents of the particular page in question, may cause problems in practice and make it impossible for the relevant editors to abide by the obligation to publish the correction and reply text on a specific page and column.
Further, pursuant to the First Instance Court's application, the Constitutional Court, after emphasizing the significance of the freedom of the press and the freedom of expression, as protected by the Turkish Constitution, explained that these freedoms are not absolute, and that they can thus be limited in some circumstances. The general principle with respect to the restriction of fundamental rights and freedoms under the Turkish Constitution is that these rights or freedoms may be restricted by a law passed by parliament, provided that the very "core" of the relevant right or freedom stays intact. However, a restriction not affecting the "core" of a right or freedom still needs to be in compliance with the requirements of a democratic society and any such restriction must also be proportionate to the purpose of the law.
The Constitutional Court stated that, according to Articles 26 and 28 of the Turkish Constitution, the freedom of expression and the freedom of the press can be restricted in order to preserve the rights and reputations of other parties. The Constitutional Court also noted that this principle is laid down in Article 10 of the European Convention on Human Rights as well, regulating the freedom of expression. Based on the principles and provisions explained above, the Constitutional Court determined that imposing a restriction on the freedom of the press by imposing an obligation to publish reply and correction texts does not affect the "core" of the freedom of the press, is proportionate to the purpose of the law, and remains in compliance with the requirements of a democratic society. The Constitutional Court further asserted that a decision to the contrary would leave individuals' freedom of expression vulnerable and disadvantaged against the freedom of the press, in light of the fact that the right to have reply and correction texts published is a part of an individual's freedom of expression.
After establishing that Article 14 of the Press Law is not contrary to the Constitution in general, the Court examined the specific part of the provision in question. The Constitutional Court rejected the application for the annulment of the obligation to publish correction and reply texts on the same page and column as the original offending article due to the following reasons: The Court found that publishing a reply and correction text on a specific page is the most effective way of reaching that part of the public who follows those particular pages and columns, since all pages or columns are not equally significant for all individuals. The Court further asserted that, with this obligation, the legislator aims to render the reply and correction text effective, by enabling the text to be as widely read and recognized as the original offending article. Furthermore, this obligation aims to balance the freedom of the press against personal rights; therefore, it cannot be considered to be a disproportionate restriction of the freedom of the press. Thus, the part of the provision in question was found to be proportionate and in compliance with the requirements of a democratic society.
Upon the Constitutional Court's rejection of the application for partial annulment of Article 14 of the Press Law, the obligation to publish correction and reply texts on the same page and column as the original offending article remains in force, provided that other conditions set forth by the same provision are met.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in June 2017. A link to the full Legal Insight Quarterly may be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
