CASE OF CENGİZ AND OTHERS v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart ideas;Freedom to impart information;Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković
5. Mr Cengiz was born in 1974 and lives in İzmir. He is a lecturer at the Law Faculty of İzmir University and is an expert and legal practitioner in the field of freedom of expression. Mr Akdeniz and Mr Altıparmak were born in 1968 and 1973 respectively. Mr Akdeniz is a professor of law at the Law Faculty of Bilgi University. Mr Altıparmak is an assistant professor of law at the Political Science Faculty of Ankara University and director of the university’s Human Rights Centre. 6. YouTube (http://www.youtube.com) is the leading video-hosting website on which users can upload, view and share videos. Most videos on the site or on YouTube channels can be viewed by any Internet users, but only users with a YouTube account may upload video files. The platform is available in more than seventy-six countries. Over one billion users visit the site each month, viewing more than six billion hours of videos. 7. On 5 May 2008, under section 8(1)(b), (2), (3) and (9) of Law no. 5651 on regulating Internet publications and combating Internet offences (“Law no. 5651”), the Ankara Criminal Court of First Instance made an order for the blocking of access to the website http://www.youtube.com and the IP addresses 208.65.153.238-208.65.153.251 providing access to the website. The court held, among other things, that the content of ten pages on the website (ten video files) infringed Law no. 5816 prohibiting insults to the memory of Atatürk. 8. On 21 May 2010 the first applicant lodged an objection against the blocking order of 5 May 2008. Relying on his right to freedom to receive and impart information and ideas, he sought to have the order set aside. 9. On 31 May 2010 the second and third applicants, as YouTube users, also lodged an objection against the blocking order of 5 May 2008. They sought to have the order set aside, arguing that there was a public interest in having access to YouTube and that the blocking of such access seriously impaired the very essence of their right to freedom to receive information and ideas. They also submitted that six of the ten pages to which the order of 5 May 2008 related had already been deleted and that the other four were no longer accessible from inside Turkey. This meant, in their submission, that the blocking order had become devoid of all purpose and constituted a disproportionate restriction on the rights of Internet users to receive and impart information and ideas. 10. On 9 June 2010 the Ankara Criminal Court of First Instance dismissed the applicants’ objection, holding in particular that the blocking order complied with the requirements of the legislation. Addressing the inaccessibility of the video files from inside Turkey, it stated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they had not been parties to the investigation procedure, the applicants did not have locus standi to challenge such orders. Lastly, the court noted that an objection against the same blocking order had already been dismissed on 4 June 2008. 11. On 2 July 2010 the Ankara Criminal Court upheld the decision of 9 June 2010 of the Ankara Criminal Court of First Instance, holding that it had complied with the procedural rules and fell within the court’s discretion. 12. On 17 June 2010 the Ankara Criminal Court of First Instance adopted a further decision concerning YouTube, ordering the blocking of access to the website http://www.youtube.com and forty-four other IP addresses belonging to the site. 13. On 23 June 2010 the second and third applicants lodged an objection against the additional blocking order of 17 June 2010. 14. On 1 July 2010 the Ankara Criminal Court of First Instance dismissed the objection lodged by those two applicants and by representatives of YouTube and the Internet Technology Association. Addressing the inaccessibility of the video files from inside Turkey, it reiterated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they were not parties to the case, the applicants did not have locus standi to challenge such orders. It added that, given that the website in question had continued to infringe the law by remaining active, the blocking order was compatible with the requirements of the legislation. Lastly, it rejected the argument that the provision applied in the present case was unconstitutional. 15. In the judgment of 2 July 2010 referred to above (see paragraph 11), the Ankara Criminal Court also upheld the decision of 1 July 2010 of the Ankara Criminal Court of First Instance. 16. The Government indicated that in the period before and after the order blocking access to YouTube, between 23 November 2007 and 1 July 2009, 1,785 complaints had been made to the Telecommunications and Information Technology Directorate (“the TİB”) to the effect that YouTube was hosting content that was illegal under Law no. 5651, in particular concerning sexual abuse of minors and insults to the memory of Atatürk. 17. The Government also stated that prior to the order of 5 May 2008, the domestic courts had already made thirty-four orders blocking access to YouTube on account of illegal content hosted by the site. Following the orders, the TİB had contacted YouTube’s legal representative in Turkey under the “notice and take down” procedure. The order of 5 May 2008, according to the Government, indicated that there were ten web addresses (URLs) hosting defamatory content about Atatürk. Access to six of the pages had been blocked, but the other four had remained accessible both from within Turkey and abroad. Accordingly, the TİB had notified YouTube of its decision to remove the content in question. However, YouTube had not stopped hosting the offending pages and the TİB had had no other solution than to block access to the entire YouTube website, as Turkey had not set up a URL filtering system. 18. The applicants stated that following the order of 5 May 2008, access to YouTube had been blocked in Turkey by the TİB until 30 October 2010. On that date, the blocking order in respect of YouTube had been lifted by the competent public prosecutor’s office following a request from a company claiming to own the copyright to the videos. However, from 1 November 2010 YouTube had decided to restore the videos, finding that they did not infringe copyright. The second and third applicants also pointed out that they had discovered that in January 2015, four video files (nos. 1, 2, 7 and 8) out of the ten concerned by the order of 5 May 2008 were still accessible on YouTube. They noted that among those files, videos nos. 2 and 7 did not include any content that could be construed as insulting the memory of Atatürk and thus fell outside the scope of section 8 of Law no. 5651. In particular, video no. 2 was fourteen seconds long and showed a burning Turkish flag. Video no. 7 was forty-nine seconds long and showed a former chief of staff of the Turkish armed forces. Only videos nos. 1 and 8 might have been regarded as insulting, but there had been no proceedings to establish that their content was illegal.