Turkish block on Google site breached Article 10 rights, rules Strasbourg

16 January 2013 by Guest Contributor

YILDIRIM v. TURKEY – 3111/10 – HEJUD [2012] ECHR 2074 – Read judgment

In the case of Yildrim v Turkey the European Court of Human Rights decided that a Court order blocking access to “Google Sites” in Turkey was a violation of Article 10.  The measure was not “prescribed by law” because it was not reasonably foreseeable or in accordance with the rule of law.  The judgment is available only in French.

He owned and ran a website hosted by the Google Sites service, on which he published his academic work and his opinions on various matters.  On 23 June 2009 the Denizli Criminal Court of First Instance ordered the blocking of an Internet site whose owner had been accused of insulting the memory of Atatürk. The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner.

The blocking order was submitted for execution to the Telecommunications Directorate (“TİB”). Shortly afterwards, the TİB asked the court to extend the scope of the order by blocking access to Google Sites, which hosted not only the site in question but also the applicant’s site. The TİB stated that this was the only technical means of blocking the offending site, as its owner lived abroad.

The TİB blocked all access to Google Sites and Mr Yıldrım was thus unable to access his own site. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court.

Judgment

The Court accepted that this was not a blanket ban but rather a restriction on Internet access. However, the limited effect of the restriction did not lessen its significance, particularly as the Internet had now become one of the principal means of exercising the right to freedom of expression and information. The measure in question therefore amounted to interference by the public authorities with the applicant’s right to freedom of expression ([51] to [55]).

The question was, therefore, whether the  interference was justified under Article 10(2): was it  prescribed by law, in accordance with a legitimate aim and was necessary in a democratic society.

A rule was “foreseeable” in its application if it was formulated with sufficient precision to enable individuals – if need be, with appropriate advice – to regulate their conduct [57].

By virtue of Turkish Law no. 5651, a court could order the blocking of access to content published on the Internet if there were sufficient reasons to suspect that the content gave rise to a criminal offence.  However, neither Google Sites nor Mr Yıldırım’s site were the subject of court proceedings.  Although the decision of 24 June 2009 had found Google Sites to be responsible for the site it hosted, no provision was made in Law no. 5651 for the wholesale blocking of access as had been ordered by the court.

Nor did the law authorise the blocking of an entire Internet domain such as Google Sites. Moreover, there was no evidence that Google Sites had been informed that it was hosting content held to be illegal, or that it had refused to comply with an interim measure concerning a site that was the subject of pending criminal proceedings. The Court observed that the law had conferred extensive powers on an administrative body, the TİB, in the implementation of a blocking order originally issued in relation to a specified site. The facts of the case showed that the TİB had had little trouble requesting the extension of the initially limited scope of the blocking order.

This was a “prior restraint” which, although not a priori, incompatible with the Convention, required a precise and specific framework dealing with the limits of the restraint and judicial control of abuse [64].

However, when the Denizli Criminal Court had decided to block all access to Google Sites, it had simply referred to an opinion from the TİB without ascertaining whether a less far-reaching measure could have been taken to block access specifically to the site in question. The Court further observed that there was no indication that the Criminal Court had made any attempt to weigh up the various interests at stake, in particular by assessing whether it had been necessary to block all access to Google Sites. In the Court’s view, this shortcoming was a consequence of the domestic law, which did not lay down any obligation for the courts to examine whether the wholesale blocking of Google Sites was justified. The courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of Internet users and having a significant collateral effect.

As a result the Court concluded that

the interference …  does not meet the requirement of foreseeability required by the Convention and did not allow the applicant to enjoy the sufficient degree of protection required by the rule of law in a democratic society.  Moreover, this law appears to be directly contrary to the wording of paragraph 1 of Article 10 of the Convention, that the rights recognized therein apply “regardless of frontiers”. [67]

The effects of the measure in question had therefore been arbitrary and the judicial review of the blocking of access had been insufficient to prevent abuses. There had therefore been a violation of Article 10 of the Convention.  The court held that Turkey was to pay the applicant 7,500 euros (EUR) in respect of non pecuniary damage.

Comment

The Court’s decision is not surprising. It is difficult to see how a “blanket ban” of this kind on a provider of internet access, made without considering the wider impact, could ever be justified under Article 10.

The judgment contains an interesting survey of European and International law in relation to “access to the internet” ([19] to [30]), concluding by quoting General Comment No. 34 of Article 19 of the Covenant International Covenant on Civil and Political Rights [pdf] adopted during its 102th session (11-29 July 2011), which includes the following statement

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with [Article 19(3) of the Covenant]. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3.

It appears that internet blocking orders of the kind in issue in this case have been made regularly in Turkey over complaints that material was insulting to Mustafa Kemal Ataturk, the founder of modern Turkey.  For example , in 2010, the TIB sought to prevent access to You Tube in Turkey.  At that time Turkey also blocked access to a  number of other services operated by Google (see Techdirt, “Turkey keeps banning more and more of Google”).

The Open Justice Initiative, which intervened in the case, drew attention to the wider importance of the decision

This is the first ruling by an international tribunal on wholesale blocking of internet content, and a very significant precedent. The court made clear that access to online content is a fundamental right, and that it can only be restricted in exceptional cases, subject to full judicial review.

This post originally appeared on INFORRM’s Blog and is reproduced here with permission and thanks

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