Turkey: Turkish Constitutional Court: Blocking Access To A Website Breaching A Trademark Does Not Violate The Freedom Of Expression

Last Updated: 12 June 2019
Article by Ezgi Baklacı Gülkokar, LL.M. and Yonca Çelebi

The Turkish Constitutional Court ruled that blocking access to the site with the domain name "www.xxxkargomagdurlari.com" ["The Turkish Constitutional Court ruled that blocking access to the site with the domain name "www.xxxkargomagdurlari.com" ["xxxcouriervictims.com" in English] considering it as against the rule of good faith pursuant to article 55 of Turkish Commercial Code, is not against the freedom of expression.

On that basis, the applicant, acting as the attorney of the former employees who were victimized by the relevant cargo company, applied to the Turkish Constitutional Court:

Company ("Company") filed a lawsuit against the applicant on the basis that the applicant registered the website under his name which caused damage on Company's commercial reputation and requested for pecuniary and non-pecuniary damages. The first instance court ruled that:

  • The "xxxkargomagdurlari" phrase on the website domain name has a negative connotation in the society for the company.
  • The domain name constitutes unfair competition "through discrediting others and their commercial activities with unnecessarily offensive declarations" pursuant to article 55 of the Turkish Commercial Code.
  • Blocking the access to the website is necessary to prevent to use of the domain name.

On that basis, the applicant, acting as the attorney of the former employees who were victimized by the relevant cargo company, applied to the Turkish Constitutional Court:

  • The actual existence of people who were victimized by the Company excludes the website from being unnecessary, offensive and unfair,
  • The Company's material rights have not been infringed or applicant did not act with the sole purpose of damaging Company's commercial reputation,
  • Therefore, blocking access to the website violates the
    • Equal protection of the law,
    • Freedom of communication,
    • Freedom of thought and opinion,
    • Freedom of expression and dissemination of opinion, and
    • Right to a fair trial.

After a review of the case, the Turkish Constitutional Court stated that:

  • The blockage of access to the website constitutes an interference with the applicant's right to freedom of expression and this intervention is a part of the measures to protect the fame and rights of others and therefore has a legitimate purpose,
  • Commercial reputation should constitute a personal right and an economic asset value; therefore, it must be covered by the property right in accordance with article 35 of the Constitution and therefore the state should take measures for the protection of the property rights.
  • There should be a fair balance between the Company's property right and the applicant's freedom of expression.
  • In the judgment of the first instance court which stated that the relevant web site has a negative connotation in the community for Company, based on the grounds that the use of this domain name has damaged Company's commercial reputation, thus showing that the intervention corresponds to a social need pressure.
  • The interference with the applicant's freedom of expression was in conformity with the requirements of a democratic society.

By stating the mentioned reasons, the court ruled with the majority of votes that the allegation concerning the freedom of expression of the applicant was inadmissible as it was manifestly unfounded.

Against this decision, the Chairman of the Constitutional Court presented a dissenting opinion. According to this opinion:

  • Freedom of expression includes not only the freedom to "possess thought and opinion but also the freedom to express and disseminate thought and opinion" and accordingly "freedom to interchange opinion".
  • The social need pressure for the indefinite blockage of access to the relevant website is not adequately explained by the first instance court.
  • The unlimited period of access blockage is not moderate, The content in the website contained facts rather than judgment, therefore the aim is to express Company's acts that are thought to be unfair within the scope of freedom of expression, criticize and to share with public opinion rather than aiming to discrediting Company.
  • The public service companies should be open to criticism and opinions about such services, criticizing a company over the Internet is very much the same to protest company services in front of the same company by demonstrating marches and showing criticism banners, and just like such expression is protected under the constitution, the freedom of expression on the internet should also be protected.
  • Although indefinitely blocking access to the website is a convenient means of achieving the purpose of protecting the ownership of Company, it is not the last resort and the lightest measure to be taken.
  • The interference with the right to freedom of expression, protected by article 26 of the Constitution, does not correspond to a predominant social need and is not measurable.

Please see this link for the full text of the Constitutional Court's decision (Only available in Turkish)

Information first published in the MA | Gazette, a fortnightly legal update newsletter produced by Moroğlu Arseven.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions