On December 1, 2015, the European Court of Human Rights (ECtHR) held that Turkey violated the right to freedom of expression by blocking access to YouTube, a widely-used video platform, from May 2008 to October 2010. See ECtHR, Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, Judgment of 1 December 2015 (available only in French). The application was lodged by three Turkish academics who claimed that they were active users of YouTube and that a Turkish court’s blanket ban violated their right to receive and impart information and ideas. The European Court observed that as a unique platform for citizen journalists, YouTube allowed users to access information on political and social matters that could not be readily obtained elsewhere and that by blocking the access to this platform, Turkey violated the applicants’ rights under Article 10 (right to freedom of expression) of the European Convention on Human Rights (Convention). [ECtHR Press Release]
Since the ban at issue was lifted, on several occasions Turkish authorities have again blocked YouTube and other sites, including Twitter, pursuant to a newer law that allows such bans to be put in place without a court order. [Financial Times; The Guardian]
Facts and Domestic Procedure
The applicants, Mr. Cengiz, Mr. Akdeniz and Mr. Altiparmak, all taught law at universities in Turkey and were active users of YouTube, which allows people in more than 76 countries to upload, watch, and share videos. See ECtHR, Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, Judgment of 1 December 2015, paras. 5-6.
On May 5, 2008, the Ankara Criminal Court issued a decision blocking access to the YouTube website throughout the country. The court considered some videos on the website, specifically 10 of them, to be in breach of Law No. 5651 on regulating internet publications and combating internet offenses, which prohibited insults against the memory of Mustafa Kamal Ataturk, the founder of Turkey. See id. at para.7.
On May 21, 2010, Mr. Cengiz lodged a complaint concerning the court’s decision and claimed it to be in violation of his right to freedom of expression. On May 31, 2010, Mr. Akdeniz and Mr. Altiparmak also opposed the decision, arguing that access to YouTube was in the public’s interest and that the ban interfered with their academic work. They also claimed that six of the 10 videos in the site had already been removed and the remaining four videos were not accessible in Turkey. The applicants asked the Court to lift the access ban. See id. at paras. 8-9.
The Ankara Criminal Court of First Instance rejected the applicants’ complaint on the ground that the decision was based in the law and that the applicants lacked standing to challenge it because the ban was not specifically in reference to them. The court further noted that the videos in question were still accessible to YouTube users outside Turkey, making a continued ban necessary. The Ankara Criminal Court upheld the First Instance Court’s decision. See id. at para. 10. When the Ankara Criminal Court of First Instance extended the ban in 2010, the applicants’ subsequent legal challenges were again rejected.
The applicants lodged a complaint with the European Court of Human Rights (ECtHR) alleging violations of Article 10 (right to freedom of expression) and Article 6 (right to fair trial) of the European Convention on Human Rights, arguing that the YouTube ban infringed their individual rights to freedom to receive and impart information and ideas, and they had not had an effective judicial remedy for challenging the blocking order. [ECtHR Press Release]
Article 10: Right to Freedom of Expression
The Court first determined whether the applicants had standing to challenge the ban. Referring to its case law, the Court did not accept the Ankara Criminal Court’s reasoning that the applicants could not challenge the blocking decision because they were not part of the case. It recalled that the Convention did not allow an actio popularis, but rather required that the applicant be a direct victim of an alleged violation of the Convention resulting from an act or omission attributed to the Contracting State. See ECtHR, Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, Judgment of 1 December 2015, paras. 48-49.
Finding that YouTube is a unique platform that includes information that could be of particular interest for each applicant due to their profession, and that may not be available through other sources, the Court determined that the applicants could legitimately claim to have been affected by the blocking order even though they had not been directly targeted by it. The European Court also stressed that after the application was presented, the Turkish Constitutional Court had recognized the victim status of Mr. Akdeniz and Mr. Altiparmak, and that Mr Cengiz’ s situation did not differ from that of those two applicants. See id. at paras. 49-54.
Concerning the alleged violation of Article 10, the Court found that the blocking order was an “interference by a public authority” in the exercise of the applicants’ rights guaranteed by Article 10. The Court then proceeded to examine the ban’s compatibility with the requirements of paragraph 2 of Article 10, which requires that any State interference with freedom of expression be “prescribed in the law,” serve a legitimate objective, and be considered “necessary in a democratic society.” However, the Court only reached the first of these criteria in its analysis.
The Court explained that the expression “prescribed in the law” requires not only the existence of a domestic law codifying the restriction, but also refers to the quality of the law in question which must be accessible to litigants, predictable in its effect, and compatible with the rule of law. Regarding the YouRube ban, the Court concluded that this restriction was enacted through a judicial decision based on Section 8(1) of Law No. 5651, which only authorized courts to block specific material published on webpages, rather than entire websites. No Turkish law allowed the Ankara Criminal Court of First Instance to block all access to YouTube. The European Court accordingly concluded that the order did not meet the lawfulness requirement of the Convention. In view of this conclusion, the Court considered that it was not necessary to examine the ban’s compatibility with the other requirements of paragraph 2, and held that the State violated the applicants’ right to freedom of expression under Article 10 of the Convention. See id. at paras. 55-67.
Article 6: Right to Fair Trial
The Court considered that it had examined the main legal issues of the case under Article 10 and therefore found that there was no need to rule separately on the applicants’ allegations concerning access to a judicial remedy, under Article 6 of the Convention.
The European Court of Human Rights has previously issued a similar judgment involving internet freedom in Turkey. In Ahmet Yildirim v Turkey, Ahmet Yildirim claimed before the Court that he had faced “collateral censorship” when his Google-hosted website was shut down as a result of a criminal court’s order blocking access to Google Sites in Turkey. Similarly, the blocking order was intended to limit expression deemed offensive to the memory of Mustafa Kemal Ataturk. See ECtHR, Ahmet Yildirim v. Turkey, no 3111/10, Judgment of 18 December 2012, paras. 7-14. The Court found that the ban on Google Sites amounted to “interference by public authority” and, even though the blocking had some basis in law, neither the applicant’s site nor Google Sites were properly restricted because neither had been evaluated with regard to whether their content was prohibited by the law. In this regard, the Turkish courts failed to properly balance the individual and public interests at issue and did not consider merely blocking access to the site(s) found to contain prohibited material. As in its YouTube decision, the Court highlighted Google Sites’ role as a unique platform for creating, storing, and sharing information. Accordingly, the Court recognized that there was a violation of Article 10 of the Convention. See id. at paras. 55-69. It did not analyze the other elements of Article 10, paragraph 2.
Right to Freedom of Expression in Turkey
According to the Court’s statistics, since the ECtHR was established in 1959, almost half of the judgments delivered by it have concerned five Member States; Turkey is first on that list with a total of 3,095 judgments concerning its government. See ECtHR, The ECHR in Facts & Figures 2014 (2015). Freedom of expression is one of the most litigated rights in these cases. From 1959 to 2013, the Court issued 544 judgments concerning alleged violations of the right to freedom of expression and 224 of them (41%) are against Turkey. See ECtHR, Overview 1959 – 2013 ECHR (2014).