Yaman Akdeniz and Others, Application No: 2014/3986, 2 April 2014

A) Facts

The Presidency of Telecommunication and Communication (TİB) blocked the access to the web site with the domain name twitter.com as a precautionary measure on the basis of the judgement of the Office of the Chief Public Prosecutor of İstanbul, of the 2nd Criminal Court of Peace of Samsun, of the 5th Criminal Court of Peace of İstanbul Anatolia and of the 14th Criminal Court of First Instance of İstanbul Anatolia given between 3 February 2014 and 18 April 2014. The Constitutional Court stated that these judgements were given upon the complaints from citizens, but Twitter did not comply with them. TİB also blocked access to Google DNS addresses to prevent changing the DNS settings for logging into the blocked website twitter.com. The applicants Yaman Akdeniz, Mustafa Sezgin Tanrıkulu and Kerem Altıparmak claimed that there was no effective remedy for them to exhaust and therefore they have directly resorted to individual application procedure before the Court. In the meanwhile, the Union of Turkish Bar Associations filed a lawsuit against the aforementioned measure and a stay of execution was awarded, but apparently it was not implemented by TİB.

B) Judgment and Reasoning of the Court

As regards to the admissibility, the Court assessed the claim that the administrative procedure was not an effective remedy to be exhausted. The Court first emphasized that “[t]aking into consideration the restrictive impact of the blockage of access to a social media web site which has millions of users in our country on the freedom of expression of these individuals” the conformity of those restrictions to law should be urgently checked. Then it reminded that the blockage has not yet removed despite the decision of stay of execution and observed that:

“It is apparent that the information and thoughts shared on the social media in relation to certain incidents and cases may become outdated and lose their effect and value as time passes. Under these circumstances, it is concluded that it cannot be said that the court judgment provides an effective and accessible protection in terms of removing the violation and the negative consequences thereof against the uncertainty about when access to the web site will be possible again upon the enforcement of the court judgment and thus it is not an effective remedy for the applicants to apply to the administrative court.” (§ 26)

The Court specifically emphasized the importance of the Internet with regard to the freedom of expression and noted that the state and administrative authorities should act very sensitively in regulations in relation to the Internet and social media tools (§ 39).

While evaluating the lawfulness of the intervention, the Court found that the court judgments constituting the basis for TIB decision blocked access only to certain URL addresses and that no judgement is rendered by courts of instance in relation to directly blocking access to twitter.com (§ 46). For that reason, the Court came to the conclusion that the complete blockage of access to twitter.com was not lawful (§ 48).

As a result, the Court ruled that Article 26 of the Constitution was violated (§ 49).

C) Significance of the Judgment

This judgement is one of the earliest jurisprudence of the Constitutional Court on freedom of expression and it is the first judgement in relation to social media. The assessment of the Constitutional Court presented in this judgement on the exhaustion of remedies is significant. While assessing whether the administrative procedure constitutes an effective remedy, the Court found it appropriate that the applicants to apply directly to the Constitutional Court, in light of specific characteristics of sharing news and opinions via social media. It is also striking that the Court noted that the blockage brought against the web site twitter.com interfered not only with the applicants, but with the freedom of expression of all users who make use of that network. Thus, the Constitutional Court indirectly revealed the erga omnes effect of this judgement.