Evaluation Of The Decision To Block Access To Ekşi Sözlük Within The Scope Of Freedom Of Expression - Telecoms, Mobile & Cable Communications - Turkey

Gunnar Larson g at xny.io
Tue Apr 11 09:36:13 PDT 2023


Most recently, the Information and Communication Technologies Authority
("ICTA") blocked access to Ekşi Sözlük, one of today's largest internet
communities. Although the access ban was canceled by the decision of the
Ankara 4th Criminal Court of Peace, as a result of the objection to the
decision, the Ankara 5th Criminal Court of Peace accepted the objection and
finalized the decision to impose an access ban.

With the finalization of the decision to block access to Ekşi Sözlük, the
management of Ekşi Sözlük is expected to make an individual application to
the Constitutional Court. The Constitutional Court will evaluate whether
the decision to block access to Ekşi Sözlük violates freedom of expression.

Ekşi Sözlük is an internet platform where participating authors can write
their thoughts on certain words, concepts, events, and phenomena listed and
presented to visitors in a dictionary style. As one of Turkey's most
followed internet platforms, Ekşi Sözlük has created a unique culture over
the years by mediating the interpretation of many socially influential
events and informative content. Furthermore, the fact that the platform
members create content with nicknames without revealing their real
identities has allowed them to behave more comfortably and freely than in
real life and to stand out from their social identities. As a result of
this feature, the platform is seen as a source of information by a
significant part of society. Still, it is also criticized by different
segments of society in terms of the content shared.

In the statement made by the management of Ekşi Sözlük, the reason for the
decision to block access was that Ekşi Sözlük writers gave false
information to the public, tried to manipulate the public, and although the
content-based access blocking decisions issued by the criminal judgeships
of peace were fulfilled by the management of Ekşi Sözlük, the public order
was affected by the fact that the public could not access accurate
information during this period. The reasons given for the blocking of
access to the website were also giving untrue information about the
military and state institutions, especially in the aftermath of the
earthquake, attempting to manipulate the public and portray the state as
incapable, determining that there were posts aiming to create an
environment of chaos among society segments, and the failure of the site
administrators to react to false and slanderous posts, failure to ensure
internal control, and failure of the Ekşi Sözlük administration to block
harmful posts and comments. Therefore, the first thing that draws attention
to the statement is that no specific content was cited to justify the
decision to block access.

According to Article 8/A of Law No. 5651 on the Regulation of Publications
on the Internet and Combating Crimes Committed through Such Publications
("Law No. 5651"), the President of the ICTA may decide to remove the
content or block access upon the request of the judge or the relevant
ministry in cases where it is inconvenient to delay, based on one or more
of the following reasons: protection of the right to life and the security
of life and property of individuals, protection of national security and
public order, prevention of crime or protection of public health.

The decision must be submitted to a criminal court of peace for approval
within 24 hours of the decision. According to the mentioned regulation, the
ICTA has taken this course of action because it is considered that the Ekşi
Sözlük platform, which contains allegations of providing untrue information
about the military and state institutions after the earthquake, attempting
to manipulate the society and show the state as incapable, and creating an
atmosphere of disorder among society segments, would disrupt national
security and public order. However, it is also clear that there is a need
to assess whether such an intervention is in line with the requirements of
the democratic regime.

As clearly stated in the decisions of the Constitutional Court, the concept
of the requirements of the democratic social order requires that
restrictions on freedom of expression must be compulsory or exceptional
measures and must be the last resort or the last measure to be taken. The
necessity of a democratic social order means that a restriction must be
aimed at meeting a compelling social need in a democratic society.
Accordingly, it must be assessed whether a measure limiting a fundamental
right and freedom meets a social need or is a measure of the resort. If, as
a result of this assessment, the contrary conclusion is reached, it is
clear that the measure applied cannot be considered by the requirements of
the democratic social order.

When deciding to block access to a website, it is expected that the matter
will be handled with sensitivity by acting with the awareness that this is
an exceptional practice that should be used only in cases where a delay is
inconvenient. However, in the decision to block access to Ekşi Sözlük, a
case of undue delay was not established. The relationship between this
situation and the reasons for protecting national security and public order
was not fully revealed. No concrete justification was provided to justify
this intervention. Therefore, as long as it is not demonstrated that the
shared content is of such a severe nature as to justify the complete
blocking of access to the website, and as long as the relevant content is
not removed. These remedies are not exhausted. Undoubtedly, the
interference in terms of freedom of expression will be permanent and will
not be a proportionate interference.

Today, despite the importance of the internet within the scope of freedom
of expression, it is a fact that some of the content produced on the
internet poses individual and social risks; however, a democratic society
requires that it will not be possible to be successful in combating these
risks with access restrictions alone, and if it is possible to achieve the
result expected to be achieved by blocking access by other means, a
democratic society requires that alternative means should be tried first in
the context of protecting fundamental rights and freedoms.

The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
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