April 18, 2022
On 24 March 2022, the European Court of Human Rights (hereinafter ‘the European Court’) found the Wikimedia Foundation’s application inadmissible in relation to an access blocking decision involving Wikipedia, issued by a single judge in Turkey which lasted 2 years 8 months and 24 days. This article will provide a critical overview of the legal process leading into the access blocking to Wikipedia as well as the subsequent process both at the Constitutional Court and the European Court.
Article 8/A of Law No. 5651 was introduced in March 2015. Based on this article, access to Internet content may be blocked and/or removed in order to protect the right to life or security of life and property, ensure national security, protect public order, prevent crimes or protect public health. In circumstances where delay would entail risk, the Office of the Prime Minister (until 2 July 2018) and subsequently the Office of the President of Turkey as well as relevant ministries are also authorised to request such orders but through the President of the Information and Communication Technologies Authority subject to a court order.
Access Blocking to Wikipedia
Access to Wikipedia was blocked upon the request of the Office of the Prime Minister subject to an order of the Ankara 1st Criminal Judgeship of Peace (no. 2017/2956) on 29 April 2017 because of two articles on the English Wikipedia entitled ‘Foreign involvement in the Syrian Civil War’ and ‘State-sponsored terrorism’. The Judge ruled that the two articles, which contain an excerpt on Turkey, praised terrorism, incited violence and crime, and threatened public order and national security, albeit without explaining whether the entries were likely to provoke any harmful consequences. Appeals against the blocking decision by the Wikimedia Foundation as well as by the users of the platform and a non-governmental organisation were rejected by the Ankara 2nd Criminal Judgeship of Peace (no. 2017/3172) on 7 May 2017 without any reasoning. Three separate individual applications were lodged with the Constitutional Court in May 2017.
Previously, the Constitutional Court handled swiftly applications involving access blocking to the Twitter (decided in 10 days) and YouTube (decided in 45 days) platforms. In this case, it took the Court almost 2 years and 8 months to decide the Wikipedia-related applications. During that time, while the applications were pending at the Constitutional Court, the Wikimedia Foundation lodged an application with the European Court on 29 April 2019. The Court granted priority treatment to the application and communicated the case to the Turkish government on 2 July 2019. This almost immediately triggered the Constitutional Court to review the case and the process for obtaining the Ministry of Justice input as well as all the applicants’ observations on the Ministry submission were completed by mid-October 2019.
Constitutional Court’s Majority Decision of 26 December 2019
The Constitutional Court decided the case on 26 December 2019. Access blocking to Wikipedia came to an end only after its decision was published on the Official Gazette on 15 January 2020. The Constitutional Court, in Wikimedia Foundation Inc. and Others (App. No: 2017/22355, 26 December 2019) declared the application admissible and ruled with 10 to 6 majority decision that freedom of expression of the applicants (including the user-based applications of two academics, one of which was the author of this article), which is guaranteed by Article 26 of the Constitution, was violated.
The Court stated that Article 8/A was interpreted in a way that widens the scope of the measure and creates the impression of arbitrariness, as it was not clear to the Court which of the reasons (protection of national security, public order, etc.) that allow the interference was the justification for blocking access to Wikipedia. The Court also added that protection of the “reputation of the state” was not one of those justifications even though the Ankara 1st Criminal Judgeship of Peace relied on this in his reasoning (§ 61). Therefore, the Court stated that “no concrete reason justifying interference with” freedom of expression “for the purposes of protecting national security and the protection of public order was presented” by the Ankara 1st Criminal Judgeship of Peace decision (§ 88).
In conclusion, the Constitutional Court ruled that, the access-blocking measure has become permanent, and that “such indefinite restrictions will clearly constitute a highly disproportionate interference with freedom of expression, considering that the entire website is blocked” (§ 96). There was also no such pressing social need for indefinite access blocking to Wikipedia. Meanwhile, the dissenting judges argued that the content of the Wikipedia pages was prejudicial to national security and public order, the impugned measure was proportionate to the aim pursued and Wikipedia could have removed those pages to avoid access blocking to the entire website from Turkey.
This was not the first time the Constitutional Court handled Article 8/A of Law No. 5651, and thus the decision was not a surprise. In fact, the Constitutional Court implemented the principles it set in its earlier Birgün judgment (App. No: 2015/18936, 22 May 2019) where the Court already found violations of freedom of expression and freedom of the press and laid down a principled approach for the judges to follow. The Constitutional Court perhaps could have issued a pilot decision to indicate a systemic problem emanating from Article 8/A. The European Court’s decision should be considered with this background in mind.
The European Court’s Decision
The European Court declared the application by the Wikimedia Foundation inadmissible. To reach this decision, the Court went at great length to defend the Constitutional Court’s judgment. First, the European Court recalled that in numerous cases relating to freedom of expression, it has concluded that a constitutional complaint must be considered as a remedy to be exhausted and that the Court has no sufficient evidence to enable it to say that an individual application to the Constitutional Court is not likely to provide appropriate remedy for the complaints under Article 10 of the Convention (§§ 39-40). According to the Court, Article 8/A defines the criteria for access blocking and the Constitutional Court considered access blocking to an entire website as an “exceptional measure.”
Secondly, the European Court noted that the Constitutional Court decided without settling the question of whether Article 8/A was “prescribed by law”, and it observed that the law had been the subject of an extensive interpretation which opened the way for arbitrary application. However, the European Court stated that the applicant primarily alleged that the interference was disproportionate in its application to the Constitutional Court (§ 42).
Thirdly, according to the European Court, the applicant had the opportunity to challenge the foreseeability as well as the quality of the law in question in the context of its application to the Constitutional Court. The Court stated that it was apparent from the evidence in the file that the applicant was raising this argument for the first time before the European Court (§ 43). In any case, the Court stated that it does not have sufficiently relevant evidence to suggest that the Constitutional Court is not capable of remedying the alleged systemic problem and if the systemic nature of a problem is proven, the Constitutional Court has appropriate means, such as the pilot judgment procedure, other than simply finding a violation in an individual application (§ 44). So, according to the Court, in the context of an individual application, the Constitutional Court is empowered to examine the foreseeability of a provision and to conclude, if necessary, that it did not meet the requirements of the “quality of law”.
Fourthly, the Court noted the immediate execution of the Constitutional Court’s decision by the Ankara 1st Criminal Judgeship of Peace by lifting the access blocking order and states that the length of time taken to examine the application before the Constitutional Court is not in itself sufficient to draw a conclusion as to the effectiveness or otherwise of the procedure before the Turkish Constitutional Court (§ 46).
Finally, so far as the time length the Constitutional Court has taken to decide the application, the Court does not find the 2 years and 8 months period to decide the case as manifestly excessive even though considers it to be long (§ 47).
Overall, the Court considered that the Constitutional Court has acknowledged in substance the violation of Article 10 of the Convention and provided appropriate and sufficient redress for the damage sustained by the applicant. The Court therefore held that the applicant could no longer claim victim status and that the application was incompatible with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected.
The Calm before the Storm?
The European Court was aware of the existence of Article 8/A of Law No. 5651 since Cengiz and Others v. Turkey (nos. 48226/10 and 14027/11, 01.12.2015) albeit confusingly, as the Court thought that this provision amended another access blocking provision within that Law, namely Article 8 (§ 75). In fact, both still remain valid as different access blocking measures.
Regarding the arguments raised by the applicant that systemic problems exist with Article 8/A, the European Court only stated that the Constitutional Court has the means to address the systemic problems and that the applicant should have pursued the legality argument at the Constitutional Court level. However, even though the “other applicants” at the Constitutional Court did challenge the legality of Article 8/A in the same case and requested the pilot judgment procedure to be initiated, the Constitutional Court simply chose to ignore that argument.
More importantly, the applicants perhaps should have relied on Article 18 of the Convention (limitations on use of restrictions on rights) in conjunction with Article 10 to argue that there is a vast amount of evidence that Turkey deploys the Article 8/A measure as a political censorship tool to block and silence opposition and Kurdish media websites. Furthermore, access blocking to Wikipedia was not a unique and isolated incident.
The European Court may have also dismissed this argument, but at least evidence was provided to the Court by the high calibre third party interveners such as the Council of Europe (CoE) Commissioner for Human Rights and the United Nations Special Rapporteur on Freedom of Opinion and Expression that the problems associated with Article 8/A are “systemic” rather than isolated and finding a violation at the Constitutional Court level does not rectify the systemic wrongdoings of a contracting State. The Commissioner for Human Rights stated that the “letter and spirit of the Turkish Internet Law is directly causing numerous violations of the right to freedom of expression as protected under Article 10 of the Convention. This problem is particularly acute in the context of Article 8/A of the Internet Law, which gives a quasi-automatic power to the Turkish executive to block any content” (§ 11).
More importantly, the Commissioner stated that “the blocking measure affecting the applicant [Wikimedia Foundation], while particularly egregious, is far from being an isolated case. It is a symptom of a deep systemic problem stemming from, on the one hand, the incompatibility of Turkey’s internet legislation with its obligations under the Convention, and on the other hand, the persistent failure of the Turkish judiciary to mitigate these legislative shortcomings in a Convention-compliant manner.” (§ 15).
Moreover, is it not the case that the Court was not aware of the fact that only in March 2021, the Committee of Ministers in relation to the supervision of the execution of the Ahmet Yıldırım Group of Cases deeply regretted that the Law No. 5651 “still does not correspond to the concerns raised by the European Court, as it allows the blocking of access to an entire website in circumstances where blocking access to the relevant content is not possible, without submitting this measure to a proportionality assessment based on necessity, and the absence of any requirement of necessity in the legislation means that there is still no clear provision obliging domestic judges to conduct a proportionality assessment”? As the CoE Commissioner of Human Rights argued, “the systemic nature of the problem requires far-reaching measures, including the complete overhaul of the relevant Turkish legislation”.
Furthermore, the length of time taken for deciding the application by the Constitutional Court was manifestly excessive. According to the Court, the 2 years and 8 months period to decide the case was not manifestly excessive. However, was it really necessary to block access to Wikipedia because of the two entries that are not entirely about Turkey and written in English rather than in Turkish without a proportionality assessment? Even if there was such a necessity, is it not manifestly excessive for Wikipedia to be completely inaccessible for 2 years and 8 months, thus depriving all users from an invaluable source of information while the Constitutional Court took its time?
More importantly, the Court did not address the issue of how long it should take for the high courts to decide applications involving access blocking to Internet content. The Court only stated that this conclusion “should not be interpreted in such a way as to give the national courts carte blanche with regard to similar complaints” raised under Article 10 of the Convention. This is surely an important question especially with regards to wholesale access blocking to platforms such as Wikipedia as well as news websites, considering that the Court has already handled applications of this kind previously both in relation to Turkey and Russia (see e.g. Ahmet Yıldırım v. Turkey, no. 3111/10, 18 December 2012 and OOO Flavus and Others v. Russia, no. 12468/15, 23 June 2020). The Court failed to provide a satisfactory answer and basically provided no assurance to prevent this from happening again.
Despite the inadmissibility decision, the discussion over Article 8/A is far from over. Hitherto, there are three other Article 8/A-related applications and next on the agenda of the European Court is access blocking to the Sendika.org news website, which was based on 63 separate Article 8/A decisions between 2015-2020 (Ali Ergin Demirhan v. Turkey, no. 10509/20, communicated on 6 July 2020). The Court will therefore have to revisit its Wikimedia Foundation decision soon and address alleged violations of Articles 10 and 13, and more importantly, Article 18 in conjunction with Article 10 of the Convention. The wind is certainly blowing. Paraphrasing Judge Kūris and his beloved Bob Dylan, do you really need a weatherman to know which way the wind blows? (Partly Dissenting Opinion, Sabuncu and Others v. Turkey, no. 23199/17, 10 November 2020). Perhaps, the storm is yet to come.