The Constitutional Court’s decision on internet law
BURÇAK ÜNSAL
The Constitutional Court’s decision on Dec. 8, 2015, nullifying some of the provisions introduced in February 2014 in Law No. 5651 on Regulation of the Content Published on Internet and Struggle against Crime Committed Thereby (abbreviated by the media as the “Internet Law”) stirred up questions as to whether the administration could restrict access to the Internet without a court order. The answer to that question is a plain “no.”Accordingly, the provision requiring
a) Content providers to deliver the data and to comply with the measures as demanded by the Telecommunication Transmission Directorate (TİB) was nullified.
b) Hosting providers such as Ekşi Sözlük, Facebook, Twitter and YouTube to store users’ traffic data up to 2 years and categorization of the hosting providers with respect to their rights and liabilities was nullified.
c) Hosting providers to deliver the data and to comply with the measures as demanded by TİB was nullified.
d) Access providers such as ADSL and GSM operators to take alternative measures to restrict access to the content for which an access restriction has been issued, was nullified.
e) The term “and publications with the same nature” was nullified in the provision stipulating a “judge’s decision to restrict access to the publication shall be implemented also on the publications with the same nature….”
By virtue of this decision, Internet users’ personal data will not be stored and shared with the administration by private companies. Hosting providers will not be categorized and made subject to different set of regulations by the administration. Moreover, contents will not be discretionally restricted because they have the “same nature” as those which have been restricted.
We need to evaluate this decision as an integral part of the European Court of Human Rights’ decisions condemning Turkey’s illegal ban on Google Sites dated December 2012 and its illegal ban on YouTube dated December 2015, as well as the Constitutional Court decisions dated April 2014 on the banning of Twitter and YouTube before the 2014 municipal elections and the Council of State’s decision suspending the implementation of the articles of association of the Access Providers Union.
As unequivocally confirmed by all these decisions issued by the highest courts, the Internet Law and implementation thereof are violating the Constitution and the European Convention of Human Rights (ECHR). Turkey was already forced to amend the Internet Law back in the beginning of 2013 following the initial decision of the European court.
Instead, what parliament did was make everything worse. And such further illegitimacy has been confirmed by one Council of State decision, three Constitutional Court decisions and one decision of the European court.
These highest courts’ decisions convey the following messages on our parliament:
• The Internet is a platform where people exercise their fundamental rights and liberties, which are under constitutional and statutory guarantee, and the Turkish state has to protect it.
• Restriction of the Internet means restriction of fundamental rights and liberties, especially rights to news, communications, free expression and free press. Such rights and liberties may only be restricted exceptionally and in accordance with the constitution and international conventions to which Turkey is a party. Any incompliance would amount to violation of law by the state.
• Turkey’s Internet Law, access restrictions and content removals, lack of reasoning and URL specification in the court decisions, targeting an entire Internet service instead of the specific illegal content and denying legal remedy to the people are all breaches of the Turkish Constitution and ECHR.
Article 8/A of the Internet Law especially violates Articles 2, 5, 13, 22, 26, 36, 38, 40 and 153 of the constitution in the following ways:
- Relevant provisions furnish the administration with judicial powers and injure the separation of powers, a fundamental principle of the constitutional system and the rule of law.
- Restriction of fundamental rights and liberties can only target removal of an immediate risk that seriously threatens the existence and well-being of the entire society. The restriction shall be limited by scope, purpose, time and shall be established by law subject to judicial review of economically and administratively independent courts.
- They illegitimately restrict the right of access, which has been acknowledged as a fourth generation basic human right by the UN, EU, the European Court and our Constitutional Court.
- Contrary to earlier decisions of the Constitutional Court, they allow the administration to discretionally, disproportionately and extremely restrict the Internet which is indispensable, un-substitutable, and exceedingly important for exercising the right to news, freedoms of expression, communication, press and conduct commercial activities.
- Efficient legal remedy against the administration’s actions is denied to the public.
Burçak Ünsal is a lawyer admitted in New York & Istanbul.
