CASE OF AHMET YILDIRIM v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
6. The applicant was born in 1983 and lives in Istanbul. 7. The applicant owns and runs a website (http://sites.google.com/a/ahmetyildirim.com.tr/academic/) on which he publishes his academic work and his views on various topics. The website was created using the Google Sites website creation and hosting service (http://sites.google.com/). 8. On 23 June 2009, under section 8(1)(b) of Law no. 5651 on regulating Internet publications and combating Internet offences, the Denizli Criminal Court of First Instance ordered the blocking of the website http://sites.google.com/site/kemalizminkarinagrisi/benimhikayem/atatuerk-koessi/at (hereinafter “the offending website”). The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner, who was accused of insulting the memory of Atatürk. 9. On the same day, under section 8(3) of Law no. 5651, a copy of the blocking order was sent to the Telecommunications and Information Technology Directorate (“the TİB”) for execution. 10. On 24 June 2009, at the request of the TİB, the Denizli Criminal Court of First Instance varied its decision of 23 June and ordered the blocking of all access to Google Sites under section 8 of Law no. 5651. The TİB had indicated that this was the only means of blocking the offending website, as its owner did not have a server certificate and lived abroad. 11. The TİB, implementing the order of 24 June 2009, blocked all access to Google Sites and the applicant was thus unable to access his own website. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court. 12. On 1 July 2009 the applicant applied to have the blocking order of 24 June 2009 set aside in respect of his website. He pointed out that he used the website regularly in order to publish his academic work and his opinions on various topics, and that the measure had barred all access to his site, which had no connection with the offending website. He argued, in particular, that in order to prevent other websites being affected by the measure, a method should have been chosen which would make only the offending website inaccessible. He cited as an example blocking the site’s URL. In support of his request, the applicant furnished the court with a copy of the webpage which appeared when he tried to access his own website. The following warning was displayed: “The Telecommunications and Information Technology Directorate has applied the order issued by the Denizli Criminal Court of First Instance on 24 June 2009 in respect of this website (sites.google.com) as a preventive measure.” 13. On 13 July 2009 the Denizli Criminal Court dismissed the applicant’s application. Referring to a recommendation issued by the TİB, it considered that the only means of blocking access to the offending website, in accordance with the blocking order, had been to block access to the Google Sites service, which had hosted the content complained of. 14. The applicant wrote to the Court on 25 April 2012 informing it that he was still unable to access his website even though, as far as he understood it, the criminal proceedings against the owner of the offending website had been discontinued on 25 March 2011 because of the impossibility of determining the identity and address of the accused, who lived abroad. 15. The relevant parts of Law no. 5651 read as follows: “(1) For the purposes of this Law, ... (e) Access provider [(erişim sağlayıcı) shall mean] any natural or legal person which provides users with Internet access; (f) Content provider [(içerik sağlayıcı) shall mean] any natural or legal person which produces, modifies or supplies any kind of information or data for Internet users; ... (ğ) Internet publication [(yayın) shall mean] data which can be accessed via the Internet by an indeterminate number of persons; ... (l) Publication [(yayın) shall mean] publication on the Internet; ...” “(1) Content providers shall be held liable for any content they provide via the Internet. (2) Content providers shall not be held liable for content belonging to others which can be accessed by means of a link provided by them ... ...” “(1) Hosting service providers shall not be required to monitor the content hosted by them or to ascertain whether it constitutes illegal activity. (2) Subject to their criminal responsibility, hosting service providers who are informed, in accordance with sections 8 and 9 of this Law, of the illegal nature of content hosted by them shall be required to cease publishing it, in so far as they have the technical capacity to do so.” “(1)(a) Where they are informed, in accordance with the provisions of this Law, of the illegal nature of content published by a user, access providers shall be required to block access to the illegal content, in so far as they have the technical capacity to do so. ... (2) Access providers shall not be required to monitor the legality of the content and information to which they provide access. ...” “(1) A blocking order [erişimin engellenmesi] shall be issued in respect of Internet publications where there are sufficient grounds to suspect that their content is such as to amount to one of the following offences: (a) offences under the Criminal Code ... (1) incitement to suicide (Article 84); (2) sexual abuse of minors (Article 103 § 1); (3) facilitating the use of narcotic drugs (Article 190); (4) supplying products dangerous to health (Article 194); (5) obscenity (Article 226); (6) prostitution (Article 227); (7) hosting gambling activities; (b) offences against Atatürk under Law no. 5816 of 25 July 1951; ... (2) The blocking order shall be issued by a judge if the case is at the investigation stage or by the court if a prosecution has been brought. During the investigation, the blocking of access may be ordered by the public prosecutor in cases where a delay in acting could have harmful effects. The order must then be submitted to the judge for approval within twenty-four hours. The judge must give a decision within a further twenty-four hours. If he or she does not approve the blocking of access, the measure shall be lifted by the prosecutor forthwith. Blocking orders issued as a preventive measure may be appealed against in accordance with the provisions of the Code of Criminal Procedure (Law no. 5271). (3) A copy of the blocking order issued by the judge, court or public prosecutor shall be sent to the [Telecommunications and Information Technology] Directorate for execution. (4) Where the content provider or the hosting service provider is abroad ... the blocking order shall be issued by the Directorate of its own motion. It shall then be notified to the access provider with a request for execution. (5) Blocking orders shall be implemented immediately or at the latest twenty-four hours after notification. ... (7) If the criminal investigation ends in a decision to discontinue the proceedings, the blocking order shall automatically cease to apply ... (8) Where the trial ends in an acquittal, the blocking order shall automatically cease to apply ... (9) If the illegal content is removed, the blocking order shall be lifted ...” 16. The Telecommunications and Information Technology Directorate was established under provisional section 7 of Law no. 2559 on police powers and responsibilities, as amended on 3 July 2005 by Law no. 5397. As an administrative body it is responsible, among other tasks, for recording and monitoring information disseminated using telecommunications tools. 17. In practice, where a court orders the blocking of access to a specific website, it falls to the TİB to implement the measure. If the content provider or hosting service provider is abroad, the TİB may block all access to the pages of the intermediary service provider under section 8(3) and (4) of Law no. 5651. Therefore, the issuing of a blocking order does not result only in access to the website which is the subject of criminal proceedings being blocked; access to all the content on the Internet domain concerned is also liable to be blocked. Thus, domains such as blogspot.com, blogger.com, Google Groups, myspace.com and youtube.com have been the subject of blocking orders over long periods of time because of the websites which they host. 18. The notion of what constitutes a “publication” within the meaning of section 2(1) of Law no. 5651 has also been the subject of debate among legal commentators. In the view of some commentators, sub-paragraph (ğ), according to which the concept of “Internet publication” denotes “data which can be accessed via the Internet by an indeterminate number of persons” is in contradiction with the notion contained in subsection (l) of the same section, which states that “[p]ublication [(yayın) shall mean] publication on the Internet”. The difficulty stems from the reference to “data which can be accessed via the Internet”, which could apply to all kinds of data transmitted over the Internet. 19. The Convention on Cybercrime (ETS No. 185), which came into force on 1 July 2004, was drawn up by the member States of the Council of Europe, Canada, Japan, South Africa and the United States of America. It deals with various types of offences in the sphere of cybercrime: action directed against the confidentiality, integrity and availability of computer data and systems; computer-related forgery and fraud; content-related offences, especially those related to child pornography; and offences concerning infringements of copyright and related rights (Chapter II, Section 1, Titles 14). 20. The preamble to the Declaration of the Committee of Ministers on human rights and the rule of law in the Information Society (CM(2005)56 final of 13 May 2005) recognises that “limited or no access to [information and communication technologies (ICTs)] can deprive individuals of the ability to exercise fully their human rights”. The first chapter of the Declaration, entitled “Human rights in the Information Society” contains the following passages: “1. The right to freedom of expression, information and communication ICTs provide unprecedented opportunities for all to enjoy freedom of expression. However, ICTs also pose many serious challenges to that freedom, such as State and private censorship. Freedom of expression, information and communication should be respected in a digital as well as in a non-digital environment, and should not be subject to restrictions other than those provided for in Article 10 of the [Convention], simply because communication is carried in digital form. In guaranteeing freedom of expression, member States should ensure that national legislation to combat illegal content, for example racism, racial discrimination and child pornography, applies equally to offences committed via ICTs. Member States should maintain and enhance legal and practical measures to prevent State and private censorship. ...” 21. The preamble to the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers on 28 May 2003 at the 840th meeting of the Ministers’ Deputies states that prior control of communications on the Internet, regardless of frontiers, should remain an exception, and that there is a need to remove barriers to individual access to the Internet. The Declaration sets forth, inter alia, the following principles: “... Principle 1: Content rules for the Internet Member States should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery. ... Principle 3: Absence of prior State control Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality. ...” 22. The explanatory note to the Declaration includes the following commentary on Principle 3: “Absence of prior State control This principle underlines the importance of no prior State control over what the public can search for on the Internet. In some countries, there is a tendency to block access by the population to content on certain foreign or domestic websites for political reasons. This and similar practices of prior State control should be strongly condemned. Although the State should by no means take broad measures to block undesirable content, exceptions must be allowed for the protection of minors. Where minors have access to the Internet, for example in schools or libraries, public authorities may require filters to be installed on computers to block access to harmful content. The absence of prior control by the State does not of course rule out measures being undertaken to remove content from the Internet or block access to it following a preliminary or final decision of the competent national authorities on its illegality, not only under penal law, but also under other branches of law such as civil or administrative law. This would typically be the case when injunctions are sought to prevent the publication on the Internet of content which is illegal. Such measures, which could entail some sort of prior control, would have to fulfil the requirements of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms and they would have to be directed at a clearly identifiable Internet content.” 23. In 2007 the Committee of Ministers adopted Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet. The second and third chapters, entitled “Access” and “Openness” respectively, deal implicitly with the issues of accessibility of the Internet and the restrictions that may be permitted. 24. Also in 2007, the Committee of Ministers adopted Recommendation CM/Rec(2007)11 on promoting freedom of expression and information in the new information and communications environment. 25. In 2008 the Committee of Ministers adopted Recommendation CM/Rec(2008)6. The appendix to this Recommendation sets out guidelines on using and controlling Internet filters in order to fully exercise and enjoy the right to freedom of expression and information. 26. On 4 April 2012 the Committee of Ministers adopted Recommendation CM/Rec(2012)3 on the protection of human rights with regard to search engines. Paragraph 1 of the Recommendation stresses, inter alia, that “[s]earch engines enable a worldwide public to seek, receive and impart information and ideas and other content in particular to acquire knowledge, engage in debate and participate in democratic processes”. 27. Recommendation 2008/2160(INI), adopted by the European Parliament on 26 March 2009, stated expressly that States should participate in efforts to establish an e-democracy on the basis of full and safe access to the Internet. Parliament therefore recommended to member States that they should condemn governmentimposed censorship of the content that could be searched on Internet sites, and called on them “to ensure that freedom of expression is not subject to arbitrary restrictions from the public and/or private sphere and to avoid all legislative or administrative measures that could have a ‘chilling effect’ on all aspects of freedom of speech”. 28. Case C-70/10, examined by the Court of Justice of the European Union (CJEU), concerned a reference for a preliminary ruling following an order issued by a Belgian court requiring an Internet service provider to install a permanent monitoring system blocking all online activity liable to infringe intellectual property rights. 29. In its judgment of 24 November 2011 the CJEU held that the holders of intellectual property rights should have the possibility of applying for an injunction against an intermediary who carried a third party’s infringement of a protected work or other subject matter in a network, and that the arrangements governing such injunctions should be left to national law. However, the national rules had to observe the limitations arising from European Union law and in particular from the Directive on electronic commerce (2000/31/EC), which prohibited national authorities from adopting measures which would require an Internet service provider to carry out general monitoring of the information that it transmitted on its network. The CJEU took the view that injunctions of the kind issued in the case under consideration did not respect the requirement that a fair balance be struck between the right to intellectual property on the one hand and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information on the other. Accordingly, it concluded that European Union law, and in particular Directive 2000/31/EC and the applicable fundamental rights, precluded an injunction imposed on an Internet service provider to introduce a system for filtering all electronic communications passing via its services, applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period. 30. In its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (1129 July 2011), the United Nations Human Rights Committee stated as follows: “43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information-dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.” 31. In view of the fact that legislation concerning the Internet, which has to be seen against a background of rapidly changing new technologies, is particularly dynamic and fragmented, it is difficult to identify common standards based on a comparison of the legal situation in Council of Europe member States. A survey carried out by the Court of the legislation of twenty member States (Austria, Azerbaijan, Belgium, the Czech Republic, Estonia, Finland, France, Germany, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Romania, Russia, Slovenia, Spain, Switzerland and the United Kingdom) reveals that the right to Internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information. The right to Internet access is considered to be inherent in the right to access information and communication protected by national Constitutions, and encompasses the right for each individual to participate in the information society and the obligation for States to guarantee access to the Internet for their citizens. It can therefore be inferred from all the general guarantees protecting freedom of expression that a right to unhindered Internet access should also be recognised. 32. In a decision of 10 June 2009 (no. 2009-58 DC), the French Constitutional Council, for instance, stated clearly that freedom of expression implied freedom of access to the Internet. The Constitutional Council also set forth a number of basic principles concerning the restriction of Internet access. Restrictions on the public’s right to access online communication services could be ordered only by a judge, following a fair trial, and had to be proportionate. Finding that “in view of the nature of the freedom guaranteed by Article 11 of the 1789 Declaration, the legislature may not ... confer powers [to restrict or prevent Internet access] on an administrative authority with the aim of protecting the holders of copyright and related rights”, the Constitutional Council declared to be unconstitutional the legislative provisions which provided for the blocking of Internet access in cases of infringement of copyright, in the absence of a prior judicial decision. It held that the suspension of access could be ordered only after adversarial judicial proceedings, as an ancillary penalty. Interim measures or injunctions could be ordered by the urgent-applications judge, provided that they were “strictly necessary in order to preserve the rights in question”. 33. As regards possible restrictions in cases of illegal Internet content, European countries have adopted a wide variety of approaches and legislative measures, ranging from the suspension of individual rights of Internet access or the removal of the illegal content, to the blocking of access to the specific website in question. In most European countries, the protection of the rights of minors and efforts to combat the sexual exploitation of minors constitute a basis for appropriate measures restricting access to the websites concerned (this is the case in France, Germany, Switzerland and the United Kingdom). When it comes to ordinary crime, the measures restricting access are different and less severe in six countries (Austria, Estonia, Finland, Italy, Lithuania and the Netherlands). 34. As to the scope of the restrictions, a distinction is generally made according to the nature of the offence committed, namely between offences against intellectual property rights and other offences. According to a report by the Organization for Security and Co-operation in Europe (OSCE) entitled “Freedom of expression on the Internet: study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States”, there are no general legislative provisions on the blocking of Internet access in Austria, the Czech Republic, Germany or Poland. Five countries (Estonia, Finland, the Netherlands, Russia and the United Kingdom) have no legislation providing for wholesale blocking irrespective of the offence but have enacted specific legislative provisions allowing access to be blocked in the case of certain types of offence. These include child pornography, racism, hate speech, incitement to terrorism and defamation. 35. In Russia, although a blanket prohibition on Internet access is not possible, access restrictions may be imposed under federal legislation on specific grounds, for instance to protect the foundations of the constitutional order, morals, health or the legitimate rights and interests of others, or in the interests of national defence and security (Federal Law no. 149-FZ). 36. In those countries which do not have a general or specific legislative framework providing for the closure of sites and/or the blocking of access, blocking measures may nonetheless be ordered by a judge or applied on a voluntary basis. 37. The possibility of appealing against a measure prohibiting Internet access is closely linked to the general guarantees protecting the right to receive information and to express one’s views. In Azerbaijan, Belgium, the Czech Republic, Lithuania, Spain and the United Kingdom, no specific provisions exist governing appeals against measures restricting access to an Internet page. Reference is made instead to the general constitutional provisions on freedom of expression and information or, in the case of the United Kingdom, to the possibility of judicial review if the user can prove that he or she has a sufficient interest linked to the subject of the impugned measure. In Estonia, the legislation makes express provision for contesting a measure restricting access to information on the Internet before a higher administrative authority or a specialised agency or directly before the courts in cases concerning public information which the authorities are required to make accessible (the Public Information Act).