YouTube blocking in Turkey, another violation of fundamental rights

The European Court of Human Rights ruled on Tuesday, 1 December 2015, that the blanket blocking of YouTube by Turkish authorities violated the right to freedom of information. But not even the victorious complainants trust that Turkey will comply with the court's decision.

In an unanimous ruling the European Court of Human Rights in Strasbourg declared blanket bans of YouTube between May 2008 and October 2010 a violation of article 10 of the European Convention on Human Rights. Some ten websites on the YouTube platform allegedly insulting the memory of Kemal Atatürk, founder of modern Turkey, resulted in a complete ban of the video content platform. The Court found that there is not even a provision in Turkish law allowing domestic courts to release blanket blocking orders.

Article 10 of the European Convention on Human Rights violated

This kind of blanket ban clearly violated the right to receive and impart information of the three complainants, Izmir lawyer and international law expert Serkan Cengiz and law professors Yaman Akdeniz (Bilgi University Istanbul) and Kerem Altıparmak (University of Ankara), the Court decided.

The complainants had appealed the original blocking decision by the Ankara Criminal Court of First Instance earning a rejection by the same court “on the grounds that the blocking order had been imposed in accordance with the law and that the applicants did not have standing to challenge such decisions.” The court also defended the total blocking of YouTube with the argument that while the videos were no longer accessible from Turkey, they still could be accessed by users worldwide. The Ankara Criminal Court upheld the decision resulting in the appeal of the three Turkish law experts to Strasbourg.

While not targeted individually, users have standing in article 10 procedure

Akdeniz in a first reaction wrote to the Internet Policy Review that he did “not expect blocking practices to be ceased immediately or in the near future. In fact there have been several more instances of blanket bans by the Turkish authorities. However, we will use this decision in our fight against internet decisions. It will be an important weapon against mass internet censorship.”

The YouTube decision furthermore was “not only legally but also politically important,” as “the Court recognised our user-based application which is a significant step forward not only in relation to Turkey but for all countries recognising the jurisdiction of the European Court,” he underlined. Recognition of users having rights protected by Article 10 is very important and is now “beyond doubt”, the Istanbul-based professor said. The Strasbourg Court had dismissed the argument of the Turkish Courts that the three academics had not been targeted directly by the ban and therefore had no standing.

Notorious Law No. 5651

Despite the victory Akdeniz and his colleagues had hoped for more from Strasbourg, namely that the court would include a statement based on article 46 of the European Convention on Human Rights on “binding force and execution of judgments.” Akdeniz noted: “to be credible as part of its democratisation progress, Turkey needs to abolish all blocking measures under Law No. 56511. Unfortunately the Court did not address our article 46 request, though.” Law No. 5651 was amended only at the beginning of this year to finally make blanket bans of websites legal, in clear contempt of an earlier ruling of the Strasbourg Court on blockings (see Yildirim vs Turkey).

The European Court of Human Rights did indeed not go as far as to clear the air about the notorious Law No. 5651. The judges observed "that after the introduction of the present applications Law no. 5651 had been amended and now allowed blocking orders to be imposed on an entire Internet site where the conditions set out in section 8 A 3) were met. As the new Act was not of concrete application in the present case, the Court did not consider it necessary to rule on Article 46 of the Convention.” This is where the court made an “error”, thinks Akdeniz.

Deteriorating human rights situation

From Brussels, Marietje Schaake, member of the European Parliament commented: “The judgment sends another clear message that Turkey is really damaging itself by adopting disproportionate laws and practices that allow the blocking of entire internet sites." Schaake, who had criticised Turkey for its deteriorating human rights record, also called on the European institutions to not let President Recep Tayyip Erdoğan's regime off the hook for the continued attempts to stifle free expression and the freedom of the media. The Dutch liberal2 called on European Commission Vice-President Frans Timmermans to not remain silent on the human rights violations in Turkey - over a EU-Turkey deal with Erdoğan’s administration preventing refugees from entering the EU.

While the court in Strasbourg was rendering its judgment, Reporters Without Borders sent out an urgent request to Turkey to immediately release Cumhuriyet journalists Can Dündar and Erdem Gül - and many colleagues detained in the country for doing their work of reporting and investigating. Turkish authorities are “persecuting journalists of all colors in an increasingly ferocious manner,” the signatories of the call warned. They spoke of a “spiral of oppression” in the country.

Also 1 December 2015, the United Nations Special Rapporteur on the independence of judges and lawyers Mónica Pinto, condemned in the strongest terms the recent killing of Tahir Elçi, human rights lawyer and head of the Diyarbakir Bar Association.