Turkey: The Constitutional Court: Trademark Right Vs. Freedom Of Speech

Introduction

The Constitutional Court of the Republic Of Turkey ("Constitutional Court" or "Court) rendered an important decision regarding freedom of speech with relation to creating unfair competition by using a company's trademark in a domain name with the purpose of criticism. The decision was published in the Official Gazette on March 20, 2019.

The History of the Case

The applicant party ("Applicant") founded a website name "www....kargomagduralari.com" ( "www.victimsofthecouriercompany...com ) with the purpose of collecting criticising comments about that specific courier company from the former employees who believe that their employment contracts have been unfairly terminated.

The courier company sued the Applicant on grounds that the use of their trademark in the domain name in a criticizing way damages their commercial reputation and requested that the damaging comments be deleted from the website and that the access thereto be restricted. In evaluation of the matter, the 4^th Civil IP Court of Istanbul ("IP Court") concluded that the acts of the Applicant constituted unfair competition as per the Article 55 of the Turkish Commercial Code ("TCC") and decided for a restriction of access to the website. This decision was upheld by the Supreme Court. As a result, the Applicant submitted an individual application to the Constitutional Court on the grounds of violation of following fundamental human rights; equality before the law, freedom of communication, freedom of thought and freedom of speech.

The Evaluation and Ruling of the Constitutional Court

The Constitutional Court stated that the IP Court's verdict constituted a limitation to the freedom of speech and therefore it is imperative to evaluate whether such limitation constitutes a violation of the freedom of speech based on the following criteria; legality, legitimate purpose and conformance with the necessities of a democratic society.

In light of their evaluation, the Constitutional Court found that the IP Court's decision met the requirements of legality and legitimate purpose, as it was rooted in the Article 55 of the TCC and that it intended to protect the commercial reputation of the courier company. Furthermore, the Constitutional Court stated that limitation conforms to the necessities of the democratic society, since the State has a positive obligation to protect the fundamental rights of the individuals (e.g. right of property) not only from itself, but also from other individuals. Therefore, considering the balance between the freedom of speech of the Applicant and the courier company's right of property damaged by the website, the Constitutional Court declared that the limitation was proportionate. With these reasons, the Constitutional Court decided to reject the application based on the majority vote.

The Dissenting Opinion

One of the judges ("Dissenting Judge") issued a motivated dissenting opinion. In this opinion, it was stated that the limitation to the freedom of speech should respond to a societal need, that it should be the last resort solution and that it should be the exception, rather than the rule. According the Dissenting Judge, under the principle of proportionality, the accuracy of the information published on the website and the public interest in this information shall also be taken into consideration, while establishing a balance between the right of property of the courier company and the Applicant's freedom of speech.

The dissenting opinion argues that indefinite restriction placed by the IP Court without properly evaluating the fact that what kind of societal need this restriction respond to cannot be considered proportionate. Moreover it emphasizes that, while setting balance between these two rights, it is to be noted that protecting the commercial reputation of a company serves a personal interest, whereas protecting the freedom of speech serves the public interest. Therefore, steps taken to protect the commercial life shall not render the freedom of speech dysfunctional.

The Dissenting Judge categorizes the joint stock companies in the group of individuals/institutions who voluntarily became public figures and therefore should be able to tolerate higher levels of criticism in comparison with regular people, as it is expressly stated in the decisions of the European Court of Human Rights ("ECHR") (e.g. Steel and Morris v. the United Kingdom, App. No. 68416/01, February 15, 2005.).

The Dissenting Judge also refers to a similar case handled by the WIPO Arbitration and Mediation Centre in which the complainant company requested the transfer of the domain name "akbankmagdurlari.com" ("victimsofakbank.com") to itself. This was a website where criticizing comments about a bank was published. The presiding panellist stated that these websites contained criticising comment of the consumers about the services provided by the complainant company, and therefore should be protected within the scope of freedom of speech.

In light of these reasons, the Dissenting Judge concludes that restriction of access to subject-matter website in order to protect the right of property deriving from commercial reputation is not a direly necessary precaution within a democratic society, that it is not an efficient tool serving the purpose and that it is a disproportionate violation of the freedom of speech under the Article 26 of the Constitution.

Comments

This decision sheds light into Constitutional Court's perspective on how to handle cases where two fundamental rights such as freedom of speech and right of property compete, especially in the area of service industry. However, it is quite concerning to see that the Constitutional Court is evaluating the freedom of speech very narrowly, despite the fact that it is widely protected by the decisions ECHR, WIPO and jurisprudence of other countries.

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