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Recent development
The Turkish Constitutional Court’s Decision No. 2018/6707, dated 31 March 2022, regarding the violation of a doctor’s freedom of expression was published in the Official Gazette on 26 May 2022. The Constitutional Court evaluated the freedom of expression within the scope of scientific discussions. The decision is available in Turkish here.
Background
In the case, the applicant is a doctor and university professor. The applicant made statements in a TV program about sugar loading procedures during pregnancy. In the statements, the applicant mentioned the practices of other doctors and made references to her own book. Due to her statements, the Turkish Medical Association ruled for her suspension from the profession for 15 days on the grounds that the evaluations concern areas that are not her expertise, harm public health, and involve advertisement and discrediting of their colleagues. The applicant approached the administrative court to have the decision annulled, but both the administrative court and the regional administrative court upheld the decision. The applicant then applied to the Constitutional Court.
Scope of the decision
The Constitutional Court evaluated the allegations within the scope of freedom of expression and the press, pointing out that the restrictions on rights and freedoms must: (i) have a lawful basis; (ii) rely on legitimate causes under the Turkish Constitution; and (iii) comply with the needs of a democratic society and the principle of proportionality according to Article 13 of the Turkish Constitution. The Constitutional Court focused its evaluations on compliance with the requirements of a democratic society.
The Constitutional Court drew attention to the need to establish a balance between the dissemination of false information in the health sector and freedom of expression. It also underlined that scientific freedom is specifically referred to and protected in the Constitution. Freedoms such as thinking, wondering and researching should be protected, especially in the field of science, in order to reach true information. Similarly, science involves proving hypotheses as well as questioning and falsifying them. Therefore, freedom of expression is not limited to accurate information; inaccurate information should also benefit from freedom of expression.
In the light of these explanations, the Constitutional Court stated that in order to combat information that poses a threat to human health, policies guaranteeing freedom of expression should be developed. The prevention of the circulation of information and the punishment of people for their statements hinder the development of science and poses challenges in the health sector. In this respect, the Constitutional Court stated that public authorities should consider the following criteria when interfering with the disclosure of information posing a threat to human and public health:
- The content of the threat to individual and public health must be demonstrated.
- It must be clearly set forth that the information is intentionally and verifiably false or misleading and may mislead individuals.
- The direct links between the statements and the threat must be clear, specific and singular.
In the light of these evaluations, the Constitutional Court assessed the case at hand as follows:
- The threat posed by the applicant’s speeches to mother and child health was not concretely demonstrated by the first instance court. Also, it was not clearly set forth that the information in question was deliberately incorrect, and the link between the statements and the threat to public health was not distinct.
- The requirement of expertise in order to express an opinion on a particular subject unreasonably restricts the freedom of expression.
- The applicant’s statements were directed at the methods used by the doctors, not toward the doctors themselves. In addition, since it is important to discuss methods in scientific matters, criticism of the methods should not be considered criticism of the scientists who use those methods. The limits of criticism should be wider in these matters.
- The applicant’s reference to her own books to support her statements and expressing her thoughts through channels she deems appropriate falls within freedom of expression.
Based on these assessments, the Constitutional Court decided that the disciplinary punishment imposed on the applicant does not correspond to a social need and is not proportionate.
Conclusion
In the decision, the Constitutional Court underlined the importance of freedom of expression in terms of scientific discussions. The Constitutional Court emphasized that science develops through discussions, and accordingly determined the criteria for evaluating the interference to freedom of expression in terms of the statements that pose a threat to public health.
