The Constitutional Court published an important decision concerning content liability in the internet medium on the Official Gazette of April 11, 2019. In the Constitutional Court's decision[1] ("Decision") of March 7, 2019 on an individual application, the applicant alleged that his right to freedom of expression and freedom of press were violated due to his conviction based on the crime of insulting religious beliefs in an article broadcasted in a newspaper's website.

The applicant ("Applicant") was the editor and the responsible manager of a national newspaper's website. The contents subject to the Decision were two articles written by a person who introduces him/herself as "God".

According to the Decision, the editorial board of the newspaper decided to publish popular social media accounts' articles and contacted these accounts, including an account using "God" as its user name. In the two articles written by the relevant social media account on August 3, 2013 and August 10, 2013, the writer was pretending to be "God", as the author of the articles as first-person interpretation.

The contents of the articles were displayed on the website of a newspaper and were written by a person impersonating "God", and included satirical statements such as "Even though the leftist wing of the country does not like me, writing in this newspaper will improve our relationship, however the rightist wing never proposed me to write in their newspapers even though they always use my name everywhere" and "the hell is a scary place and it is extremely hot, however it is way more secure and fair than Turkey, as everybody burns freely and together without any personal differences. The only difference between hell and Turkey is that hell is hotter, however this may change during the course of summer".

Istanbul Public Prosecutor's Office initiated an investigation against the Applicant, after receiving reports from the public due to these articles and filed a criminal case against the Applicant due to insulting religious values adopted by certain part of the public. Accordingly, Istanbul 2nd Criminal Court of First Instance decided to (i) sentence the Applicant for seven months and 15 days, and (ii) suspension of the pronouncement of the verdict on November 25, 2014. Applicant's objection to this decision was also rejected on December 11, 2014.

Accordingly, the Applicant filed an individual application before the Constitutional Court on January 26, 2019 with the application number 2015/1570 by claiming that his freedom of expression and press has been violated.

The Court started its evaluations by stating that the Applicant's request is based on whether the conviction of the local court (which found that publishing the articles constituted the crime of publicly insulting religious values) violates freedom of expression. The Constitutional Court further stated that in order to evaluate whether convicting the Applicant and granting suspension of the pronouncement was necessary in a democratic society, the contents of the statements, the position of the Applicant, the effect of these contents on other people's rights and on public order, and whether the measures in this regard meet a social need should be looked into.

The Constitutional Court stated that in the articles published by the Applicant on the website, the author criticizes Turkey's current social and political situation satirically by using the name "God" and states that, when the statements used in the articles are evaluated without decontextualizing; the articles mention of discomfort in the current order of the country and criticizes the government practices. In this regard, the Constitutional Court states that the articles serve to a public discussion.

The Constitutional Court also states that, even though the articles are considered as inconvenient by people who are the member of monotheistic religions at the first glance, it is not possible to argue that the articles include harmful, offensive and inappropriate statements for others. The Constitutional Court further indicates that satirical publications, which are critical statements, are under the protection of freedom of expression, even if they are considered as "worthless" or "unbeneficial" by others. Accordingly, even though there is an obligation to avoid statements that do not benefit public discussion and that are in harmful nature towards others, it is also important to balance the conflicting rights. Finally, the Constitutional Court refers to the reports received from the public and indicates that there is no objective danger to sentence the Applicant and thus, there is no relevant and adequate reason revealing that sentencing the Applicant for seven months and 15 days is necessary.

The Constitutional Court also evaluated Istanbul 2nd Criminal Court of First Instance's decision on suspension of the pronouncement of the verdict and stated that such verdict does not decrease the weight of intervention to the Applicant's freedom of expression. The Constitutional Court further states that the concern for sanction has a disincentive factor and may cause the Applicant to refrain from expressing his thoughts and conducting press activities. Therefore, considering that main duty of press is to ensure a proper democracy, the Constitutional Court emphasized that sentencing the Applicant may suppress the contribution of press to public discussion for the benefit of the public.

Consequently, the Constitutional Court decided that Applicant's freedom of expression and press has been violated. The Constitutional Court stated that there is legal benefit in retrial of the Applicant in order to cease the consequences of the violation, which was caused by the local court, and the local court should revoke the court decision that caused the violation, and grant a decision that will be appropriate for the consequences of the violation.

In conclusion, the Constitutional Court unanimously decided that (i) the application based on the violation of freedom of expression and press is rightful and admissible, (ii) that the freedom of expression and press protected under Article 26 and Article 28 of the Turkish Constitution has been violated, (iii) to send a copy of the order to Istanbul 2nd Criminal Court of First Instance to recover the consequences of the violation, and (iv) that a total amount of TRY 2,701.90 be paid to the Applicant for legal costs.

The Constitutional Court's decision constitutes an important precedent in terms of content liability in the internet medium, in the direction of the freedom of expression and speech, particularly considering that the issue relates to contents which might be deemed sensitive among the public.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2019. A link to the full Legal Insight Quarterly may be found here

[1] The Constitutional Court's decision with the Application Number 2015/1570, available at 0411-10.pdf (last access date May 13th, 2019).

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