Blocking of Access to Removal of Contents Under the Law Numbered 7253April, 2021, ERDEMİR&ÖZMEN ATTORNEY PARTNERSHIP
Blocking of Access to Removal of Contents Under the Law Numbered 7253
“The Law on Making Amendments to the Law on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication”, numbered 7253, (“the Law”) has been adopted by the Grand National Assembly of the Republic of Turkey on 29.07.2020, and it has been passed into law.
Under certain provisions of the Law, it is aimed to regulate the publications on social media platforms and to fight against the crimes committed through the Internet.
This newsletter is issued in order to provide information about the innovations brought by the Law numbered 7253 under its supplementary article 4 and in order to provide information within the context of the precedent judgments of the European Court of Human Rights regarding the blocking of access to and removal of contents.
First of all, it is useful to examine the concepts of blocking access to contents and removal of contents.
Concepts of blocking access to contents and removal of contents
To begin with, we need to emphasize that the concepts of blocking access to contents and removal of contents from publication are different from each other. By the method of blocking content, the access of the user to a content is essentially restricted. However, it may not be possible to remove a content from publication in any event. In such a case, blocking access to a content emerges as a precaution in the process until the content is removed from publication. On the other hand, removal of a content from publication means separation, removal of the content from the servers or from the existing content by the hosting providers.
As a matter of fact, a court order or an administrative decision may be necessary in order to remove a content from publication. In the same direction, in case a content is stored abroad, the law applicable to the content should be determined primarily and then, the necessary actions should be taken within the scope of that law. In such cases, it is possible to resort to blocking access to the content as a priority protection measure in the process until the content is removed from publication.
In fact, it would not be wrong to say that the methods of blocking access to a content on the Internet content or filtering such content are related to international law. This is because, the blocking or filtering implemented by a country can prevent transboundary data flow. Or, when such blocking or filtering is imposed on a platform which is located within the borders of a country and which broadcasts outside the country, this may cause a restriction of the freedom of expression, and consequently, other fundamental rights and freedoms of persons in another country.
Within this context, access to a content on the Internet may be temporarily blocked as a precaution. In case there is a legal dispute, it is possible to resort to this remedy within the scope of a preliminary injunction, or in the context of protection measure in the existence of a crime. It is worth noting that the preliminary injunction can be requested before the litigation or during the trial in order to prevent the irrevocably occurrence of loss of rights. On the other hand, protection measures mean the legal intervention in the fundamental personal rights of the persons by the competent authorities in non-delayable cases. A temporary blocking may also take place for a specific period, matter, or content.
Another form of blocking is when a court issues an order, or an administrative authority issues a decision to block a content permanently. In this case, protective/preventive measures of temporary nature may lead to permanent blocking of the content. If a preliminary injunction decision has been rendered to block access, however, a lawsuit has not been filed against this decision within the statutory term, the blocking decision would become null and void and it would again be possible to access the blocked content. Similarly, upon a criminal trial ceases to exist, the blocking of access issued within the scope of preventive measures will have to be revoked as well. However, in case a blocked content is in another country, it is generally not possible to implement the appeal conditions in that country due to economic difficulties, and in this case, permanent blocking of content may arise on the Internet.
To examine temporary and permanent blockings in terms of time, it is possible to say that, in practice, the most common method by which blocking decisions are rendered gains currency in post-violation blockings. In this case, it can be said that a specific decision has been taken to block this content while the content is already in an internet environment. In other words, a concrete blocking decision is taken for a concrete content available on the Internet.
In some cases, pre-violation blockings may gain currency in order to intervene in a content on the Internet immediately. In these cases, the violation has not yet occurred, however, it is highly likely that the violation will occur, and irreparable damages may arise if the violation occurs. In such cases, the content that will cause violation has not been uploaded to the internet yet and a blocking decision has beforehand been rendered for this content. As a matter of fact, the decision to block access will be enforced if violation takes place.
Evaluations within the scope of the Law numbered 7253
The supplementary article 4 is regulated under the Law numbered 5651 by the article 6 of the Law, and this article entered into force on 01.10.2020.
As expressly regulated by the provisions of the supplementary article 4 added to the Law numbered 5651, the innovations brought by the supplementary article 4 for blocking access to and removal of contents are briefly as follows:
Pursuant to the statutory provision, the persons may apply for the social network provider in cases of violation of their personal rights and their right to privacy. In this case, a decision may be rendered for the removal of such content, if this is possible, instead of a decision for blocking access.
In the event that the content which is determined to be illegal by the decision of the judge or court is notified to the social network provider, the social network provider that does not remove the content or block access within 24 hours despite the notification is liable for compensation of any damage incurred. For the operation of this civil liability, it is not required to resort to the liability of the content provider or to sue the content provider.
Such decision may also order that the social network provider shall make the relevant notification to the search engines in order that the content is not listed by the search engines since the content has been removed and that the applicant’s name is therefore not associated with the violation-related content by those search engines. Therewithal, by operation of the Law, it will be mandatory for the social network providers to reply the complaints about any contents within 24 hours or in no later than 48 hours; and if they do not fulfill this obligation, administrative fine shall be imposed on those social network providers.
The administrative fines imposed under this Law may be notified directly to the addressee by the Authority in case the addressee that has committed the violation is abroad, in which case the notification shall be made in accordance with the procedure set out in the paragraph 3 of the article 3 contained in the Law numbered 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication. Accordingly, by electronic mails or other communication means, on the basis of the data obtained through the IP address, domain name, communication means, contact details on their web pages or similar resources, the notification may be made to those that carry out their relevant activities domestically or from abroad. Such notification shall have the force of a notification made in accordance with the Notifications Law numbered 7201. Such notification shall be deemed to have been made at the end of the fifth day following the notification date.
Besides, another innovation brought by the Law is that the wording “blocking access” is amended as “removal of the content and/or blocking access”. Within the framework of the legal arrangements issued, the social network providers shall complete the necessary works and processes within 3 months in order to fulfill their obligations included in the scope of the necessity to respond, within 48 hours, to the applications for “removal of the content from publication and blocking access” and “blocking access to the content due to the right to privacy”. Furthermore, the social network providers shall publish on their websites and transmit to the Authority in June 2021 the first reports they shall prepare pursuant to the applications for “removal of the content from publication and blocking access” and “blocking access to the content due to the right to privacy”.
For detailed information about the matter, you can read our newsletter entitled “Under the Law numbered 7253, Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication”.
Examinations within the scope of the judgments of the European Court of Human Rights
· The Ahmet Yıldırım v. Turkey judgment of 18 December 2012 constitutes the first judgment delivered by the European Court of Human Rights regarding the blocking of access to a content on the Internet.
The Ahmet Yıldırım v. Turkey judgment delivered by the European Court of Human Rights on 18 December 2012 is of importance with regards to the exercise, by individuals, of their freedom of expression on the Internet.
The case relates to a court order issued to block access to a website which was created using the “Google Sites” website creation and hosting service and about which the owner of the website was subject to a criminal case for insulting the memory of Atatürk. This measure taken to block access to the site also caused blocking of access to all other sites created using the “Google Sites” website creation and hosting service.
The national court ordered to block access to a website on the grounds that the website contains expressions insulting the memory of Atatürk. The order bears the characteristics of an injunction issued within the framework of the criminal investigation carried out against the owner of the website. The Telecommunications Information Technology Directorate blocked all access to “Google Sites” and the applicant was thus unable to access his own website. The applicant Yıldırım wrote to the European Court of Human Rights informing it that he was still unable to access his website even though, as far as he understood it, the criminal proceedings against the owner of the offending website had been discontinued because of the impossibility of determining the identity and address of the accused, who lived abroad.
To summarize the relevant assessments and the judgment of the European Court of Human Rights, the Court finds that the measure in question produced arbitrary effects and that, furthermore, the judicial review procedures concerning the blocking of Internet sites are insufficient to meet the criteria for avoiding abuse and that, accordingly, there has been a violation of Article 10 of the Convention. Consequently, in the judgment, the European Court of Human Rights holds that Turkey is to pay the applicant EUR 7,500 in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses.
· The Cengiz and Others v. Turkey judgment of 1 December 2015 constitutes the second significant judgment delivered by the European Court of Human Rights regarding the blocking of access to a content on the Internet.
The most important note emphasized by the European Court of Human Rights in the Cengiz and Others v. Turkey judgment is that the laws must be convenient for access and predictable in terms of their consequences in order for the item “prescribed by law” to be realized effectively. In other words, in order for every person governed by the law to regulate his acts in accordance with the laws, it is of importance that the law is prepared so as to give this opportunity to the person.
Relying on Article 10 of the Convention, the applicants complained that they had been prevented from having access to YouTube, particularly in consequence of the measure ordered. Furthermore, relying on Article 6 of the Convention, the applicant Cengiz complained that he had not had an effective remedy enabling him to have the impugned measure reviewed by the courts.
Relying on article 8 of the Law numbered 5651, the national court ordered to block access to the website http://www.youtube.com and the IP addresses providing access to the website and held that the content of ten pages on the website (ten video files) infringed the Law numbered 5816 Concerning Crimes Committed Against Atatürk. Mr. Cengiz lodged an objection against the blocking order and sought to have the order set aside. However, the national court dismissed the applicant’s objection.
To summarize the relevant assessments and the judgment of the European Court of Human Rights, the Court considers that, whatever its legal basis, such a measure was bound to have an influence on the accessibility of the Internet and, accordingly, engaged the responsibility of the respondent State under Article 10 and that the measure in question therefore amounted to “interference by public authority” with the exercise of the rights guaranteed by Article 10. The Court states that such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in Article 10/2 and is “necessary in a democratic society” to achieve those aims. Consequently, the European Court of Human Rights holds that there has been a violation of Article 10 of the Convention, in respect of the application.
· The ML and WW v. Germany judgment of 28 June 2018 is one of the judgments delivered by the European Court of Human Rights regarding the removal of contents.
On 21 May 1993, following a criminal trial based on circumstantial evidence, the applicants were sentenced to life imprisonment for the murder of W.S., a very popular actor. They lodged an appeal which was dismissed in 1994. The German Federal Constitutional Court decided not to entertain the applicants’ constitutional appeals against the decisions of the criminal courts.
The applicants complained that the Federal Court of Justice’s refusal to prohibit the media outlets concerned from keeping on their respective Internet portals the transcript and the written reports concerning the applicants’ criminal trial constituted an infringement of their right to respect for their private life under Article 8 of the Convention.
To summarize the relevant assessments and the judgment of the European Court of Human Rights, the Court mentions the necessity of an examination of the fair balance to be struck between the applicants’ right to respect for their private life under Article 8 of the Convention and the radio stations’ and publishers’ freedom of expression and the public’s freedom of information under Article 10 of the Convention. In consequence of the assessments carried out on whether there has been a violation of Article 8 of the Convention, the Court had regard to the margin of appreciation available to the national authorities in such matters in weighing up diverging interests, the importance of maintaining access to reports whose lawfulness at the time of their publication is not contested, and the applicant’s conduct towards the press, and thus, the Court decides that the German State was not in breach of its positive obligation to protect the applicants’ right to respect for their private life and holds that there has been no violation of Article 8 of the Convention.
This newsletter mentions the innovations brought by the Law numbered 7253 under its supplementary article 4 and the examinations and assessments within the context of the precedent judgments of the European Court of Human Rights regarding the blocking of access to and removal of contents.
The supplementary article 4 added to the Law numbered 5651 gives persons the opportunity to apply for the social network providers in cases where their personal rights and/or their rights to privacy are violated. In this case, such contents violating personal rights and/or the right to privacy may be removed or it will be possible to block access to such contents.
As mentioned in the judgments of the European Court of Human Rights, it is of importance for persons to be able to exercise their freedom expression on the Internet, however; in cases of enforcement of the measures “removal of access” or “blocking access” against contents violating rights, those measures should not create arbitrary consequences, acts must be exhibited in a balanced manner, and it must be observed whether the necessary conditions take place for the issuance of such injunction order.
As a matter of fact, there are considerable negative effects resulting from blocking or restricting Internet access. It is recommended that these measures be used as the last resort in case of existence of public interest. In other words, if an injunction order is to be issued regarding a content on the Internet, it will be useful to consider that the fundamental rights and freedoms of individuals may also be affected by this intervention and to render a decision accordingly.