Evaluation on the Ban on Access to Instagram

I. Decision of the Information and Communication Technologies Authority ("ICTA") dated August 2, 2024

In accordance with the decision taken ex officio by the ICTA on August 2, 2024, the social media platform Instagram, which has more than 58 million active users in Türkiye, has been banned from access throughout the country. The ICTA issued this access ban decision based on the authority granted by the Law numbered 5651 on the Regulation of Broadcasts on the Internet and Combating Crimes Committed through These Broadcasts ("Law numbered 5651"). In the notification text on the official website of the ICTA, it was stated that "instagram.com was blocked to access by the decision of the Information and Communication Technologies Authority dated August 2, 2024 and numbered 490.05.01.2024.-608983." and in the statement from BTK, it was stated that this access blocking decision was based on complaints about Instagram posts within the scope of catalogue crimes including crimes such as "directing to drugs", "sexual abuse against children", "incitement to suicide", "crimes against Atatürk", "plunder and qualified plunder", "genocide crime", "incitement to war against the state". However, the reason for the access ban is still unknown.

II. Uncertainty of the Ban on Access to Instagram

In the judgements of the Constitutional Court and the justifications of these judgements, the principle of "rule of law" is of great importance. The principle of certainty, which is one of the fundamental elements of this principle, requires that the rules of law should be predictable, clear, unambiguous and comprehensible, and should include protective measures against arbitrary practices. This principle is of vital importance for individuals to know the rules of law in advance and to regulate their behavior accordingly. In its jurisprudence, the Constitutional Court emphasizes that in order to protect this principle, laws and regulatory acts must be drafted in a comprehensible manner that leaves no room for doubt for both individuals and the administration.

The reasons for the access ban imposed on Instagram across Türkiye were not presented to the public in a transparent and comprehensible manner, and no clear explanation was given as to the reason for the ban. This contravenes the principle of certainty and creates doubts about arbitrary practices of public authorities. As stated in the judgements of the Constitutional Court, such restrictions must be subject to strict formal requirements and must be in line with the general principles of law. In the present instance, leaving the justification for the ban incomplete and/or unclear not only undermines legal security, but also contravenes the principle of protection of the freedom of information and communication, which is a part of the freedom of expression. Considering the violation judgements of the Constitutional Court in similar cases, it is necessary to clarify the justification of the access blocking decision against the relevant social media platform promptly and to follow the legal procedures meticulously within this framework.

III. The Constitutional Court's Decision on the Cancellation of Law numbered 5651 and the Effects of the Decision on the Instagram Ban

By the decision of the Constitutional Court dated December 27, 2023 ("Decision"), certain provisions added to the Law numbered 5651 by the Law numbered 7253 on the Amendment of the Law on the Regulation of Broadcasts on the Internet and Combating Crimes Committed through These Broadcasts were cancelled and this Decision was published in the Official Gazette on the same date with the decision to block access to Instagram throughout Türkiye. In other words, within the scope of the Decision, the provisions authorizing the ICTA to block access ex officio and the articles stipulating the decision to block access to broadcasts on the internet or to remove the content were cancelled. The Constitutional Court granted a compliance period of nine (9) months for the implementation of this amendment. We are of the opinion that at the end of the nine (9) month period, since the article granting the ICTA the authority to block access ex officio will be cancelled, the access ban imposed on Instagram within the scope of this authority will automatically be revoked. However, it is also possible that the Grand National Assembly of Türkiye will enact a new law by this date, in which this authorization will be reassigned to the ICTA.

IV. Legal Actions to be Taken Regarding the ICTA's Decision to Block Access

Pursuant to Article 11 of the Administrative Jurisdiction Procedure Law numbered 2557 ("AJPL), those who are aggrieved / whose interests are affected by this decision may appeal against the decision to block access, which is considered to be issued by the ICTA as a precautionary measure based on the suspicion of the occurrence of catalogue crimes in Article 8 of Law numbered 5651. The objection application can be made via e-government, by post or by hand delivery with a wet signed petition addressed to ICTA. In addition, the persons concerned, who are aggrieved / whose interests are affected, may also file an action for annulment with a request for stay of execution in the administrative jurisdiction for the access blocking decision that violates their rights. In any case, the right to apply to the ICTA is reserved. This application will suspend the period for filing an administrative lawsuit.

At the end of the objection to the access blocking decision, if the competent authorities determine that there is no violation of the law, the access blocking decision will be removed. On the other hand, if the objection is rejected, the persons whose interests are affected by this decision may both request a reversal in favor of the law and file an individual application before the Constitutional Court in accordance with Article 363 of the Code of Civil Procedure numbered 6100. In the concrete case, we are of the opinion that the injunction to block access, which does not have legal grounds, is unlawful and should be cancelled. Therefore, those who have suffered damages due to this injunction may also claim compensation from the relevant administrative authority.