The Constitutional Court's decision1 ("Decision") of October 30, 2018, regarding the applicant's allegations with respect to the violation of its right to freedom of expression and freedom of press, resulting from the access ban of a news article on the website of an online newspaper (namely www.bianet.org) was published in the Official Gazette on December 4, 2018.
The applicant in this case was IPS iletişim Vakfı ("Applicant"), which is an online news organization. The news article subject to the Decision concerned the sexual harassment of women in the workplace. The article contended that the rise in the number of women who reach management positions in the corporate world would increase the possibility that women's sexual harassment complaints would be taken more seriously, and thus, argued that sexual harassment incidents could be prevented and reduced as a result. This claim was further discussed and examined in the relevant article through an illustrative example from an airline company. According to the news article, several employees at this particular airline had initiated a sexual harassment complaint against their manager and the owner of the company had taken this complaint seriously and removed the manager from his position at the company. Furthermore, a criminal complaint had subsequently been filed against the manager before the relevant public prosecutor's office. The article also asserted that the fact that the owner of the airline was a woman (who was known as an advocate for women's rights) had had an encouraging and emboldening effect on the employees with respect to voicing their sexual harassment complaints against their manager. The news article also indicated that the public prosecutor had rendered a non-prosecution decision and declined to charge the manager with a criminal offense, and that the manager had subsequently initiated a defamation lawsuit against the complainants, which had been decided in his favor.
After the news article was published, the manager in question applied to the Istanbul 7th Criminal Judgeship of Peace, arguing that the allegedly defamatory article did not reflect the truth, and he obtained an access ban decision regarding the news article. Even though the Applicant filed an objection against the access ban decision, it was rejected by the higher court that reviewed the objection, namely the Istanbul 8th Criminal Judgeship of Peace.
Accordingly, the Applicant filed an individual application before the Constitutional Court on August 26, 2015, claiming that its right to freedom of expression and to freedom of press had been violated.
Before delving into the details of its analysis of the case, the Constitutional Court first determined that the application was admissible and ruled that there had been an interference with the Applicant's freedom of expression. The Constitutional Court then began its analysis of the case by examining whether or not such interference constituted a violation of the Applicant's rights.
In its analysis of the case, the Constitutional Court first referred to Article 9 of the Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651"). Article 9 of the Law No. 5651 is entitled "Removal of Content from Broadcasts and Access Bans" and it was the basis of the access ban decision rendered by the lower court regarding the news article on the Applicant's website.
The Constitutional Court first noted that an access ban decision based on the Law No. 5651 should only be granted in urgent cases arising from a "prima facie violation," where the violation is apparent without the need for a detailed examination, such as when nude photos or videos of an individual are published online, and an individual applicant may seek judicial relief from civil or criminal courts instead of criminal judgeships.
The Constitutional Court further stated that the relevant content in this case related to an important public issue (i.e., the mistreatment and sexual harassment of women in the workplace), and thus, the news article served the public interest and had high informative value. The Constitutional Court indicated that, even though some time had passed since the incidents in question had occurred at the airline company, considering that this was an ongoing/current public issue, broadcasting the relevant news article (which contributed to a significant public discussion) still served the public interest. Moreover, the Constitutional Court emphasized that the news article also included information with respect to the public prosecutor's non-prosecution decision regarding the manager and the defamation lawsuit which had been decided in favor of the manager and against the complainants.
The Constitutional Court also asserted that the Istanbul 7th Criminal Judgeship of Peace had failed (i) to provide a convincing rationale for its decision regarding the urgent need to access ban the news article or (ii) to establish the prima facie violation, by noting that the news article in question had been published in 2006 and that the complainant had requested an access ban decision 9 years later. The Constitutional Court also declared that the manager had other and more effective remedies that he could seek, such as filing a lawsuit before civil or criminal courts, instead of obtaining an access ban decision from a criminal judgeship as a preliminary injunction, which is granted and implemented for an indefinite period of time.
In conclusion, the Constitutional Court found that the application regarding the violation of the Applicant's right to freedom expression and freedom of press was rightful (i.e., had merit), and decided to send a copy of the order to the Istanbul 7th Criminal Judgeship of Peace to rectify the consequences of the violation, and also ruled that an amount of 2,206.90 Turkish Liras must be paid to the Applicant for legal costs.
1 The Constitutional Court's decision with the Application Number 2014/19685, available at http://www.resmiga.zete .gov .tr/eskiler/2018/12/2018 The Constitutional Court's decision with the Application Number 2014/19685, available at http://www.resmiga.zete .gov .tr/eskiler/2018/12/2018 1204-6.pdf.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in March 2019. A link to the full Legal Insight Quarterly may be found here.
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