Significant Decision by the Constitutional Court: Some Provisions of Law No. 5651 Canceled

According to the Constitutional Court's (AYM) decision numbered 2020/76 E., 2023/172 K. published in the Official Gazette dated 10 January 2024, some provisions of the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications (Law No. 5651) were found unconstitutional and annulled.

The annulled provisions included regulations or sanctions on many situations in practice. Therefore, the relevant AYM decision is highly significant.

Annulment of the relevant phrases in paragraphs 4 and 11 of Article 8 of Law No. 5651

Article 8 of Law No. 5651 regulates the removal of content and blocking access to certain catalog crimes. In this context, access to many significant criminal contents such as suicide, prostitution, gambling and sexual abuse of children is blocked on the basis of this article.

Within the scope of the amendments made to Law No. 5651 in 2020, the amendments made to this article were as follows:

• The Information and Communication Technologies Authority (BTK) was provided with the authority to make ex officio decisions to remove content regarding publications related to catalog crimes.
• In addition to hosting providers, content providers and access providers were added to the sanctions that could be imposed on those who do not comply with the decision of BTK.

In this context, AYM has asserted that the decision to remove content based on an administrative authority's determination of guilt, without a finalized court decision, violates the presumption of innocence. Consequently, the regulations granting the BTK the authority to remove content, impose administrative fines on content and access providers, as well as hosting providers, have been deemed unconstitutional.

Annulment of Article 9 of Law No. 5651

Article 9 encompasses provisions related to the removal of content and blocking access in cases of personal rights violations. This regulation, frequently employed, permits the removal of content and blocking access, even in instances where a direct crime has not been committed.

In its assessment, AYM noted the absence of a gradual intervention method for limiting internet content when personal rights are under attack. The Court pointed out that the regulations in question grant powers capable of significantly interfering with freedom of expression and the press. AYM found the decision by BTK to remove content from publication, rather than blocking access, unconstitutional. It further emphasized that the affected content may include internet journalism content.

Consequently, based on this evaluation, AYM deemed certain regulations within various paragraphs of Article 9 of Law No. 5651, along with some of its paragraphs, to be unconstitutional. As a result, the decision was made to annul the entire Article 9. This comprehensive annulment was deemed necessary to prevent potential legal gaps that might arise from the annulment of specific paragraphs, thereby ensuring the uniform application of the article.

The decision will enter into force on 10 October 2024.

You can reach the full text of the AYM's decision here (only available in Turkish).