Constitutional Court Found the Advertisement Board’s Authority to Block Access to Websites was Unconstitutional and Annulled the Basis Regulation

One of the developments in 2023 that had the most profound impact on advertising law and practices was the annulment decision given by the Constitutional Court for some regulations. The decision was dated 13.09.2023, numbered 2022/70 E. and 2023/152 K. and published in the Official Gazette numbered 32352 on 27.10.2023. The Constitutional Court annulled the regulation which gave the Advertising Board the authority to block access to websites/ contents in terms of advertisements that were contrary to the legislation. Within the scope of the cancellation decision, which will come into force nine months after the date of the publication, i.e. July 27, 2024, the court ruled that the relevant regulation was contrary to the principle of proportionality, stating that more measurable regulations had to be made first. Over this long period of time, the legislator is expected to make a more measurable law that includes different protective mechanisms.

Sanctions can be imposed by the Advertising Board against advertisements that are not carried out in accordance with the law and principal decisions, especially the Law on Consumer Protection and the Regulation on Commercial Advertising and Unfair Commercial Practices. The scope of the authority to impose sanctions was expanded with the regulation published in the Official Gazette dated 01.04.2022 and numbered 31796. Thus, the Advertising Board had the power to block access to the publication, a section, or a part of the publication, or alternatively the entire website if such partial blocking was not technically possible. These decisions can be appealed before the Criminal Judgeships of Peace, whose decisions can also face another appeal. However, since these decisions are administrative, like the other decisions of the Board, they many encounter the remedy of cancellation. This is because different remedies have been foreseen for the same type of decision.

Later, an application for annulment was filed before the Constitutional Court against the regulation in question, to argue that i) There is no clear, explicit, and comprehensible criterion limiting the authority of the Board to block access, ii) In the event of a total blocking of access, other content owners on the relevant website may be victimized, iii) In this case, there would be a restriction of fundamental rights and freedoms, but there is no limitation that guarantees this, iv) The fact that the objection procedure against access blocking decisions is different from the objection procedure for other sanctions arising from the same act will cause problems in practice.

Based on the evaluation of the Constitutional Court, it is thought that it restricts fundamental rights such as freedom of expression and freedom to work and establish enterprises, but the rules in this respect must be specific, accessible, and foreseeable so as not to allow any arbitrariness. In this respect, it has been determined that the sanction in question is not an unfavorable means of protecting the consumer from misleading advertisements.

The Constitutional Court emphasized that "public authorities have the obligation to choose not only the most convenient but also the most appropriate means to achieve the legitimate aim of the restriction when it interferers with fundamental rights and freedoms". According to the regulation in the current version of the Law, it may be possible to completely block access to the relevant section without taking any other measures. It is considered that this may lead to the complete abolition of the exercise of freedom of expression and the freedom to work and to establish private enterprises. Instead, in accordance with the principle of proportionality, alternative methods that may make it possible to achieve the objective with a lighter restriction or may cause less damage should be taken into consideration.

In the case at issue, the Constitutional Court decided to cancel the sentences that had been issued. In addition, the cancellation decision will enter into force nine months after the publication of the decision in the Official Gazette to prevent the legal gaps that may arise during this period.

Consequently, the Constitutional Court did not find the main purpose and the practice of the Board in this respect completely wrong but underscored the fact that they should be evaluated within the scope of the principle of proportionality. The fact that the legislator has been given such a long period of time to make a new regulation is an indication of this. At this stage, it is expected that the legislator will develop a relatively more limited and predictable method to achieve the same basic objective and protect consumers. Also, how the process will take shape is eagerly awaited.