Recent Development
On October 10, 2024, the Constitutional Court’s decision numbered 2020/76 and dated October 11, 2023 (“Decision“), which partially annulled Article 8(4) and (11) and wholly annulled Article 9 of the Law on the Regulation of Internet Publications and Prevention of Crimes Committed through these Publications No. 5651 (“Internet Law“), became effective.
In the Decision, the Constitutional Court emphasized that these provisions do not provide a gradual intervention method for the restriction of content. Accordingly, (i) Article 9, which regulates the access blocking/content removal regime for personal rights violations, and (ii) certain sections of Articles 8(4) and 8(11), which regulates the Information Technologies and Communication Authority’s (“ITCA“) authority to issue “content removal” decisions and impose fines for non-compliance, are removed.
The Decision is available here (in Turkish).
Annulled Articles and Provisions
The articles partially or wholly annulled by the Decision are Article 8(4), Article 8(11) and Article 9 of the Internet Law, which are the provisions that set out access blocking measures for content related to catalogue crimes (e.g., obscenity, gambling, drugs, crimes against the memory of Atatürk) and violation of personal rights.
The Constitutional Court decided on the annulment of the relevant articles on the following grounds:
| Original Version of the Articles | Amended Articles | The Constitutional Court’s Grounds for Annulment |
| Article 8(4) of the Internet Law | ||
| Content removal and/or access blocking decisions for the content that constitutes the crimes listed under the first paragraph [i.e., catalogue crimes] are issued by the President [of the ITCA] ex officio. | Content removal and/or Access blocking decisions for the content that constitutes the crimes listed under the first paragraph [i.e., catalogue crimes] are issued by the President [of the ITCA] ex officio. | In the original version of Article 8(4), the ITCA is authorized to issue content removal measures based on its own assessment of the existence of the relevant catalogue crime. The fact that the ITCA, an administrative authority, can issue a content removal decision and impose administrative fines for non-compliance without a finalized court decision attesting the existence of a crime violates Articles 36 and 38 of the Constitution, which regulate the right to a fair trial and the presumption of innocence, respectively. |
| Article 8(11) of the Internet Law | ||
| The president of ITCA may impose administrative fines on the relevant content provider, hosting provider and access provider for non-compliance with the content removal and/or access blocking measure. The Authority can issue a decision to cancel the authorization of the access provider for access provider’s failure to comply with the order within 24 hours as of the imposition of administrative fines. | The president of ITCA may impose administrative fines on the relevant content provider, hosting provider and access provider for non-compliance with the content removal and/or access blocking measure. The Authority can issue a decision to cancel the authorization of the access provider for access provider’s failure to comply with the order within 24 hours as of the imposition of administrative fines. | |
| Article 9 of the Internet Law | ||
| Key paragraphs of Article 9:Individuals and legal entities and institutions and organizations who claim that their personal rights are violated due to online content can apply to the content provider, or where they cannot reach the content provider, to the hosting provider, or to the relevant judgeship of peace to request for the removal of, or access blocking to the relevant. Upon the request of applicants, the judgeship can issue a decision for the removal of, or access blocking to the specific content (or the entirety of the website/platform where the violation cannot be prevented). The decision must be complied with latest within 4 hours by the content provider, hosting provider and access providers, as applicable. | Annulled in entirety | Application of Article 9 violates Articles 25 and 26 of the Constitution, which regulate freedom of expression and press for the following reasons:(i)Article 9 prevents access to certain content on the internet indefinitely by enabling access-blocking decisions, and therefore, does not provide a gradual intervention method for restricting the content on the internet against violations of personal rights. (ii)Article 9 does not contain procedural safeguards of the judicial law as well as safeguards to ensure proportionate decision-making in accordance with the requirements of the democratic social order. (iii)Court decisions issued based on this article are unjustified and contain general expressions. |
Conclusion
The Decision marks a significant shift in Türkiye’s internet regulations. As the Decision becomes effective, the landscape of content moderation is expected to reshape. In this regard, all companies must follow the developments in relation to the practical implications of the Decision and ensure compliance with online content regulations.
