January 05, 2016
By Marina van Riel, Resident Fellow, Open Society Justice Initiative, New York (*)
On 1 December 2015, the European Court of Human Rights released a judgment in the case of Cengiz and Others v. Turkey. The main question put before the Court was whether the blocking of the popular video-sharing website YouTube constituted a violation of users’ Convention rights. Having first established the victim status of the applicants, the Court went on to find a violation of their right to receive and impart information under Article 10 ECHR.
Serkan Cengiz, Yaman Akdeniz and Kerem Altıparmak were teaching law at universities throughout Turkey when in May 2008 the Turkish Government blocked all access to the popular video-sharing website YouTube. The ban was justified under a law that prohibited “insulting the memory of Ataturk.” YouTube contained about ten videos that were deemed an insult to Ataturk by the domestic court that issued the blocking order. The ban remained in effect from 5 May 2008 to 30 October 2010, when the order was lifted by the public prosecutor’s office.
Throughout 2010, Cengiz, Akdeniz and Altıparmak sought to get the ban lifted through the domestic court system, citing the freedom to receive and impart information as well as the public interest in accessing an information sharing website such as YouTube. After the Turkish courts rejected the professors’ arguments, citing mainly a lack of standing, the law professors complained to the European Court of Human Rights. On December 1st, 2015, the Court found a violation of the professors’ right to freedom of expression under Article 10 ECHR.
One of the most striking aspects of the ECHR judgment was the Court’s flexible position on the applicants’ standing. Before deciding on the substance of a case, the Court must first decide whether a complaint meets formal admissibility requirements. One of these criteria is that applicants must have victim status, meaning they are affected by the violation they allege. Just as the domestic courts had done, the Turkish government argued that the applicants had no standing to have their claim heard by the ECHR.
The Court resolved the question of standing and the applicants’ “victim status” in this case by looking at the way in which the applicants used the relevant website, and at the magnitude of the consequences the blocking measure had on the applicants, taking into account the essential role of the Internet in receiving and imparting information (para. 49). The Court noted that the applicants were active YouTube users who accessed videos related to their work and also uploaded academic work, which was impacted by the ban.
The Court distinguished this case from Akdeniz v. Turkey, where access to music websites was blocked. The Court took the view that this case differed from Akdeniz v. Turkey because in this case the YouTube ban made inaccessible a popular platform for political discourse which displayed specific information that could not easily be accessed by other means, whereas in Akdeniz the Court pointed to alternative means available for accessing music in the face of the relevant ban (para. 51). Moreover, the Court pointed out the importance of YouTube as a means to disclose political information ignored by mainstream media, thereby contributing to the emergence of citizen journalism. This led the Court to conclude that for the applicants there was no other platform equivalent to YouTube, and that they could therefore plausibly claim to have been affected in their freedom of expression rights.
Although not mentioned in the judgment, the case bears resemblance to Yildirim v. Turkey, where the entire domain of Google Sites was blocked in Turkey due to a single website that contained content deemed offensive to the memory of Ataturk. In contrast to Cengiz and Others v. Turkey, where applicants were indirectly affected by the YouTube ban, the blanket blocking order of Google Sites directly affected Ahmet Yildirim’s access to his own website. The implementation of the Yildirim judgment is currently under enhanced supervision by the Committee of Ministers.
Once the Court had established the victim status of the applicants, it assessed whether there had been a violation of the right to freedom of expression. It found that although the blocking of YouTube did not directly target the applicants, the ban affected their right to receive and impart information and ideas. Therefore, the Court found that the ban presented an interference with the applicants’ right to freedom of expression. This interference was illegitimate because the law under which it was authorized allowed only for the banning of the specific publications in case an offence was suspected. A blanket ban of an entire website, such as in the present case, was not prescribed by law and therefore not lawful.
It is significant that the Court applied victim status to persons not directly targeted by a blocking order, but whose rights were nevertheless impacted; this gives regular internet users the opportunity to challenge such a ban, rather than reserving such a right for targeted media platforms or content owners. The decision is very timely for a country whose media landscape is increasingly under threat from restrictive measures imposed by the Turkish government. However, as rightfully pointed out in Judge Lemmens’ concurring opinion, the judgment does not consider whether the ban pursued a legitimate aim and whether it met the requirements of proportionality. The judgment therefore lacks insight into whether in principle a blanket ban would have been reconcilable with the Convention were it in fact prescribed by Turkish law.
(*) Marina van Riel is a resident fellow with the Open Society Justice Initiative. Before joining the Justice Initiative, Van Riel was Case and Project Support Officer with the European Human Rights Advocacy Centre, where she provided paralegal support in bringing cases from the former Soviet Union before the European Court of Human Rights. She previously worked with the Russian Justice Initiative, provided research assistance at Central European University’s School of Public Policy, and volunteered for various human rights NGOs, including ARTICLE 19, Sutyajnik, and PAX. Van Riel holds an LLM (distinction) in Comparative Constitutional Law (clinical specialization) from the Central European University in Budapest and an MA in Eastern European Studies from the University of Amsterdam. She is fluent in Dutch, English, and Russian.