(Feb. 25, 2020) In its judgment in Wikipedia Foundation Inc. and Others (Case No. 2017/22355) published in the Official Gazette on January 15, 2020, the Constitutional Court of Turkey (CCT) ruled that the blocking of access to the online encyclopedia Wikipedia constituted a violation of the constitutional right to freedom of expression. Access to Wikipedia.org was unblocked on the same day following the publication of the judgment.
Background
Access to Wikipedia.org was blocked in Turkey on April 28, 2017, by order of the Information Technologies and Communications Authority (Bilgi Teknolojileri ve Iletisim Kurumu, BTK) on the basis of the blocking procedure provided under article 8/A of Law No. 5651.
According to the article 8/A procedure, the BTK may order the blocking of access to online content upon the request of a judge or, in cases of urgency, the president of the republic or relevant ministries, where the blocking is necessary for the protection of the right to life and the security of life and property of individuals, protection of national security and public order, prevention of crime, and protection of public health. While in principle only the URL related to the offending content must be blocked, the whole website may be blocked if partial blocking is not technically possible. The BTK must submit the blocking order for the approval of a judge of the peace (the criminal magistrate’s court) within 24 hours. The decision of the judge cannot be appealed to a higher court, but may be reviewed by another judge of the peace upon objection. The CCT had previously clarified the limits to the application of the article 8/A blocking procedure in its decision in Birgun Iletisim ve Yayincilik Ticaret A.S. (Case No. 2015/18936). In that case, the CCT ruled that the procedure is applicable only when the threat caused by the content is so apparent that it can be determined prima facie without further investigation and when the threat is sufficiently serious as to require urgent action. The court further clarified that the blocking decisions or the judicial decisions upholding them must be reasoned, providing convincing justifications supporting the conclusion that the blocking and resulting interference with the enjoyment of freedom of expression was concordant with the necessities of a democratic society.
On April 28, 2017, the (now defunct) prime minister’s office requested the blocking of Wikipedia content which alleged that Turkey’s government had contacts with groups that included terrorist organizations taking part in the civil war in Syria. The BTK ordered that the whole website be blocked, arguing that it was technically impossible to block only the offending content. The decision was approved by a judge of the peace.
Two objections made by the Wikimedia Foundation (which hosts Wikipedia.org) were rejected by judges, with the first judge finding that the blocking could be justified as a lawful measure against “praise of terrorism, inducement of violence and crime, threatening of public order and national security,” and the second judge rejecting the objection on the grounds that the content constituted “an unjustified attack that might damage the respectability and reputation of the State of Turkey by giving the false impression that it is a state sponsoring terror.” Wikimedia Foundation petitioned the CCT for relief on May 9, 2017.
The CCT observed that Wikipedia articles were publicly editable and thus constantly changing, and that blocking access to Wikipedia only hindered Turkish editors in making additions that would make the article more balanced. Moreover, the Court found that blocking of the whole website had unduly limited Turkish readers’ “right to access knowledge and ideas.” The CCT found that the reasoning provided by the BTK and the judges of the peace had not substantiated how the content, while accusatory and depreciative of the state, created a threat to public order and national security. The Court also found that a “threat to the reputation of the State” was not a sufficient justification by itself to block content on the grounds of national security and protection of public order. Once Wikipedia.org was reopened to access after 33 months of blocking, Yaman Akdeniz, a law professor who was co-plaintiff in the case, and Gonenc Gurkaynak, the attorney for Wikimedia Foundation, criticized the Court for taking more than two and a half years to decide the case, pointing out that the Court had acted in a matter of days in previous high-profile blocking-related cases involving Twitter and YouTube.
Article 8/A and other online access-blocking procedures set by Law No. 5651 have provided a basis for the blocking of hundreds of thousands of websites and domain names in Turkey. (For a discussion of the article 9 blocking procedure of Law No. 5651, which is a separate procedure of the Law providing for the blocking of content on the basis of relieving online violations of “personal rights,” see the ”Turkey” section of the Law Library of Congress report on laws protecting journalists from online harassment.) These procedures have been severely criticized by domestic and international observers such as the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe’s Venice Commission. The application of the blocking procedures of Law No. 5651 has previously been the subject of many CCT decisions that found infringements of constitutional rights had been committed.
Updated February 25, 2020