Category: Turkiye

Turkish Constitutional Court recently granted two remarkable decisions on November 19, 2019 and on November 28, 2019 regarding individual applications claiming violation of the applicants’ freedom of expression. The decisions have been published in the Official Gazette respectively on December 24, 2019 and on January 3, 2020. In both decisions, the Constitutional Court accepted the applicants’ violation claims by concluding that the contents posted by the applicants on social media are in the acceptable limits of freedom of expression and the applicants’ freedoms of expression are violated.

The first of the decisions, which are elaborated below, concerns messages shared on a group page of a social media website whereas the second decision relates to posts of a journalist, including a hashtag, regarding a politician.

I. Constitutional Court’s Decision of November 19, 2019

-Background of the Case

Applicant of the case (“Applicant”) is a lawyer same as the complainant (“Complainant”) and they are members of a group created on a social media website.

According to the decision, the Complainant shared a text on the homepage of a group on a social media website, whose members are mostly lawyers and expressed his reaction to the contents which were humiliating religious values ​​and praising terrorist acts. Right after the Complainant’s post, the Applicant responded with a written message which was quoted from a comedy movie and stated by using a slang language that the Complainant has hurled his ideas in the group.

Eskisehir Public Prosecutor’s Office filed a criminal complaint before Eskisehir 1st Criminal Court of First Instance on the grounds that the Complaint was publicly insulted by the Applicant. Eskisehir 1st Criminal Court of First Instance convicted the Applicant and imposed a judicial fine. Following the appeal process where the Applicant’s objections were denied, the Applicant filed an individual application before the Constitutional Court (2016/5583) on March 21, 2016 by claiming that his freedom of expression has been violated.

-Constitutional Court’s Evaluation

Constitutional Court stated that the Complainant wrote a text criticizing other opinions in the relevant group and while the Complainant does not have a second thought on sharing his ideas in the relevant group, he should be more tolerant about the other members who share their opinion without exceeding the limit of criticism. On the other hand, even though it is clear that the Applicant expressed his opinion in an aggressive manner, freedom of expression does not only aim to preserve the essence of opinion and knowledge, but also protects the way the opinion and information is presented. Therefore, the Applicant’s post should be considered as a harsh response to the statements made by the Complainant. Constitutional Court further stated that the Applicant’s response is in the acceptable limits of freedom of expression and that otherwise, it would cause excessive limitation of the freedom of expression in similar cases. Therefore the balance between the Applicant’s freedom of expression and protection of Complainant’s reputation has not been provided in the relevant case. Thus, the Applicant’s freedom of expression protected under the Constitution is violated. 

In conclusion, the Constitutional Court unanimously decided that (i) the application based on the violation of freedom of expression is rightful and admissible, (ii) that the freedom of expression protected under Article 26 of the Turkish Constitution has been violated, (iii) a copy of the order to be sent to Eskisehir 1st Criminal Court of First Instance to recover the consequences of the violation and (iv) that an adequate amount to be paid to the Applicant for legal costs. 

II. Constitutional Court’s Decision of November 28, 2019

-Background of the Case

Applicant of the case (“Applicant”) is an Armenian journalist, radio and television programmer, columnist, who is a Turkish citizen and the complainant is a former mayor (“Complainant”).

According to the decision, the Complainant posted a critique regarding a third party’s visit to a monument for the alleged genocide of Armenian people and asked him whether he is Armenian on a social media website. Right after the Complainant’s post, the Applicant responded to this post with a hashtag which basically states that (i) the Complainant is Armenian (ironically for indicating that calling someone Armenian cannot be used as an insult) and (ii) the Complainant is a disgusting man, and refers to the fellowship of people (Turkish and Armenian people). 

The Complainant filed a complaint before Ankara Public Prosecutor’s Office on the basis that the Applicant insulted the Complainant and tried to establish a public pressure against the Complainant. Ankara 24th Criminal Court of First Instance decided that Applicant defamed the Complainant and imposed a judicial fine. Since the Applicant’s objections and defenses were denied, the Applicant filed an individual application before the Constitutional Court (2016/256) on January 6, 2016 by claiming that his freedom of expression has been violated.

-Constitutional Court’s Evaluation

The Constitutional Court stated that the Applicant wrote these messages upon the Complainant’s irritating messages regarding Armenian people. Constitutional Court also took into account the Complainant’s political figure status and stated that the limits of freedom of expression are broader for the statements against political figures. Accordingly the Constitutional Court concluded that the Applicant’s statements are proportionate and within the acceptable limits of freedom of expression. Otherwise, it would cause for excessive limitation of the freedom of expression in similar cases. Therefore the balance between the Applicant’s freedom of expression and protection of Complainant’s reputation has not been established in the relevant case. Thus, the Applicant’s freedom of expression protected under the Constitution is violated. 

In conclusion, the Constitutional Court unanimously decided that (i) the application based on the violation of freedom of expression is rightful and admissible, (ii) that the freedom of expression protected under Article 26 of the Turkish Constitution has been violated, (iii) a copy of the order to be sent to Ankara 24th Criminal Court of First Instance to recover the consequences of the violation and (iv) that the determined amounts to be paid to the Applicant respectively for moral damages and legal costs. 

III. Conclusion

In light of the foregoing decisions, we can observe that the Constitutional Court has taken into account all facts including but not limited to the status of the complainant and the social media website where the relevant expression is made, conjuncture in which the statements and critics were made and how these critics and reactions were expressed for evaluating violations of freedom of expression on social media. Constitutional Court acknowledged the balance between the applicants’ freedom of expression and protection of complainants’ honor and reputation but eventually upheld free speech on the internet.

By Gonenc Gurkaynak, Partner, Ceren Yildiz, Partner, Burak Yesilaltay, Associate, and Devlet Cagla Nizam, Associate,  ELIG Gürkaynak Attorneys-at-Law

Recent amendments to the Turkish legislation regarding electronic marketing communications introduced a centralized management system for obtaining, exercising and tracking the opt-in/opt-out requests as well as complaints of the recipients of electronic commercial communications. Service providers sending electronic commercial communications to customers will need to register with this new centralized management system, and notify and/or process opt-in and opt-out requests and complaints regarding electronic commercial communications through this centralized management system.

In Turkey, commercial electronic communications¹ such as messages for promotion and marketing of goods and/or services, celebrations, introduction of campaigns sent through electronic means are governed primarily by the Law No. 6563 on Regulation of Electronic Commerce (“E-Commerce Law”), which entered into force back in 2015. 

E-Commerce Law included provisions regulating the procedures and principles of marketing communications (e.g. opt-in and opt-out requirements) and obligations and liabilities of service providers and intermediary service providers in this respect. The Ministry of Customs and Trade (“Ministry”) has been designated as the authority in charge of the implementation and supervision of the E-Commerce Law. 

An amendment to the E-Commerce Law made in 2017 also authorized the Ministry to establish an electronic system which would allow recipients of commercial electronic communications to opt-in and opt-out and which would keep track of the consents obtained from the recipients. Nevertheless the E-Commerce Law referred to the regulation to be issued by the Ministry for the principles and procedures related to this system. 

The Ministry did not issue a regulation particular to this centralized system for two years. Therefore the provision had no effect in practice, until very recently. On January 4, 2020, an amendment to the Regulation on Commercial Communications and Commercial Electronic Messages (“Regulation”), which is the main regulation on the implementation of the E-Commerce Law, has been published in the Official Gazette.

The Amendment Regulation defined the system, which was previously mentioned in the E-Commerce Law, as “commercial electronic communication management system” (“IYS”) and provided that IYS is a centralized system that enables obtaining commercial electronic communication approvals, use of right to reject such communications and managing complaint processes. 

In principle, prior consent is required for sending electronic commercial communications for promoting, marketing goods and services, promoting business or increasing recognition through contents of celebration or wishes. There are certain exception to this principle, such as transactional messages and messages sent to merchants. Prior consent of the recipients, which must include their acceptance to receive commercial electronic communications, can be obtained in writing or via all sorts of electronic communication (Article 6/1 of the on E-Commerce Law No. 6563), but the burden of proof as to consent relies with the sender. 

With the recent amendments to the Regulation, IYS will serve as an alternative tool that recipients and service providers (which refers to the real persons or legal entities that conduct e-commerce activities) may use for the obtaining consent or requesting opt-out or filing complaints.  

According to the amendments, the Ministry will authorize an institution for the establishment of IYS. The authorized institution will prepare the technical infrastructure for the registration of consent and rejection (i.e. opt-in and opt-out) information on IYS, obtaining consent through IYS, the use of right to opt-out, receiving, reporting and management of commercial electronic communication complaints quickly and effectively.

Real persons and legal entities which are willing to send commercial electronic communications are now, through the recent amendments, obliged to register with the IYS. Commercial electronic communications cannot be sent to the recipients who do not have consent on IYS. Service providers will notify the opt-out notifications to IYS within three days as of receipt. Recipients can use their right to opt-out from receiving commercial electronic communications through IYS as well.

All consents obtained within the scope of the Regulation should be transferred to IYS until June 1, 2020 by the providers of those messages. As of this deadline, IYS notifies the recipients that (i) their approvals are uploaded on IYS, (ii) they have the right to check these approvals until September 1, 2020, (iii) the approvals will be deemed valid, if recipients do not check these approvals within the specified time period and (iv) recipients may opt-out from receiving commercial electronic communications through the IYS. Recipients will have the option to check their approvals on IYS until September 1, 2020 and the commercial electronic communications sent as of September 1, 2020 will be considered as approved communications. 

The amended Regulation provides that the Ministry has the authority to postpone the foregoing deadlines for three months and the IYS is not yet available in practice, as of the date of this article.

¹ Commercial electronic communications are defined under the Turkish e-commerce legislation as the communications with audio and video content and data sent for “commercial purposes” and that are carried out electronically through means such as telephone, call center, fax, automatic dialer systems, smart voice recording systems, electronic mail, SMS.

(First published by Mondaq on January 8, 2020)

By Gonenc Gurkaynak, Partner, Ceren Yildiz, Partner, Burak Yesilaltay, Associate, and Elifcan Cepoglu, Associate,  ELIG Gürkaynak Attorneys-at-Law