ELIG Gürkaynak

Attorneys-at-Law, acting as

outside counsel for Wikimedia Foundation, Inc. ("Wikimedia"), has secured an

affirmative decision from the Turkish Constitutional Court in the matter of an universal

access ban on the Wikipedia website (www.wikipedia.org) in

Turkey.

The Constitutional Court's decision regarding

the claims of violation of freedom of expression due to the access ban on the

entire Wikipedia website was issued on December 26, 2019, and published in the

Official Gazette on January 15, 2020. The Constitutional Court concluded, by a majority

vote, that the access ban of the entire Wikipedia website was unconstitutional.

Background of the Case

The Turkish Information Technologies and

Communications Authority ("ICTA") access banned the entirety of Wikipedia on

April 29, 2017, based on the contents of certain articles on state-sponsored

terrorism and foreign involvement in the Syrian Civil war, which had been

published at two different Wikipedia URL addresses (https://en.wikipedia.org/wiki/State-sponsored_terrorism#Turkey and https://en.wikipedia.org/wiki/Foreign_involvement_in_the_Syrian_Civil_War#Turkey), and which were deemed to be of a threatening nature

to Turkey's internal and external national security and accused of disturbing

the public order.

The objection filed against the access ban decision was

rejected on the grounds that the contents constituted an unjust and groundless

attack on the reputation and dignity of the Republic of Turkey on international

platforms and within the country, by creating the impression that Turkey was

one of the initiators of the civil war in Syria and by implying that Turkey was

a country that supported and provided financial assistance and weapons to terrorist

organizations.

After the access ban decision became final and

binding, Wikimedia, represented by ELIG Gürkaynak Attorneys-at-Law, filed an

individual application before the Turkish Constitutional

Court on May 9, 2017. The Constitutional Court remained silent on the issue for

more than two years. During this period, Wikimedia also filed an individual

application before the European Court of Human Rights.

The Constitutional Court Decision

In the session held on December 26, 2019, the

Constitutional Court's

General Chamber first evaluated whether there had been interference with the right

of freedom of expression, and whether such interference constituted a violation,

by assessing the case in terms of legality, legitimacy and necessity, i.e.,

by evaluating whether the grounds of the interference decision had legal basis,

legitimate aims or could be deemed necessary in a democratic society.

In terms of the access ban's legality, the

Constitutional Court stated that the legal basis of the interference was only

indicated as "Article 8/A of the Law No. 5651" in the ICTA's decision, without

further elaboration. The Constitutional Court also noted that Article 8/A(1) did

not include protecting "the dignity of

the government" among the potential grounds that would allow an access ban,

and accordingly, found such interference to be arbitrary.

As for the legitimacy question, the Constitutional

Court pointed out that an interference could be deemed to have a legitimate aim

if its purpose was the protection of values and interests under Article 26 of

the Turkish Constitution; however, in the matter at hand, the aim of the

decision was hardly discernable, and furthermore, as with the prior discussion

of legality, it was not unproblematic. The Constitutional Court further discussed

the legitimate aim within the scope of the necessity of a democratic society,

and, referring to one of its recent decisions, stated that the ICTA should

interfere with contents on the Internet only when it is necessary to protect the

public interest by taking prompt action. The Constitutional Court also stated

that interfering with the freedom of expression without proper justification

and without consideration of the criteria determined by the Constitutional

Court, would be considered to constitute a violation of Article 26 of the

Constitution, and further declared that none of these criteria (nor the

existence of a non-delayable condition) had been duly presented or fulfilled in

the subject access ban decision at hand.

The Constitutional Court provided additional analysis

on the contents of the Wikipedia articles that had resulted in the access ban

decision, and clarified that all of the claims in these articles were based on

international news articles, which, again, were all accessible through the Internet.

The Constitutional Court noted that the contents included the public statements

of well-known politicians, and emphasized that some of the claims had

referenced no sources and even those that had been cited were questionable.

The Constitutional Court also observed that Wikimedia writers

and editors had made significant changes in the relevant contents and removed

the majority of the information that was not verified or corroborated. It

further pointed out that the access ban decision not only violated Wikimedia's

rights, but also the rights of the Wikipedia users in Turkey.

Consequently, the Constitutional Court determined that

(i) the interference of the ICTA had been disproportionate, (ii) Article 26 of

the Constitution had been violated, and (iii) the case should be sent to the

first-instance court for a retrial, in order to remove the results of the

violation of the right of freedom of expression and resolve the case by

following the Constitutional Court's decision.

On the other hand, six out of the sixteen judges on

the Constitutional Court disagreed with the majority decision, and issued a

dissenting opinion which stated that certain things that are published on the Internet

might violate personal rights, or cause or abet cyber-bullying, prostitution,

child exploitation, fraud, racism and terrorism, and therefore, an access ban on

some online content might be considered necessary and appropriate. In their

dissenting opinion, the judges argued that since the content in the relevant

Wikipedia articles indicated that Turkey was one of the countries which had initiated

the civil war in Syria, and suggested that it had helped terrorist

organizations and conducted petroleum trade with them, the access ban decision

should be considered as necessary in a democratic society.

Reinstating Access to Wikipedia in Turkey

The ICTA lifted the access ban on Wikipedia on January

15, 2020, upon the order of the Ankara 1st Criminal Judgeship of

Peace, per the Constitutional Court's decision. After more than two and a half

years, access to Wikipedia has finally been reinstated in Turkey.

Wikimedia's case before the European Court of Human

Rights, which had been initiated in May 2019 regarding this universal access

ban in the absence of a decision by the Turkish Constitutional Court at the

time, is currently still pending before the Court.

Authors: Gönenç

Gürkaynak Esq., Ceren Yıldız, Noyan Utkan and Ekin İnce of ELIG Gürkaynak Attorneys-at-Law

(First published

by Mondaq on January 20, 2020)