Events
The applicants were publishers of national newspapers at the time of the events. The applicants objected to the Press Advertising Agency’s (BİK) decision to suspend their official announcements and advertisements for various periods due to certain news articles and opinion pieces published in their newspapers. Their appeals were rejected by the relevant courts of first instance, and the applicants separately filed individual applications with the Constitutional Court.
Allegations
The applicants claimed that the decision to suspend their official announcements and advertisements for various periods due to news articles and opinion pieces published in their newspapers violated their freedom of expression and freedom of the press.
The Court’s Assessment
The Constitutional Court combined the 14 individual application files in this individual application file due to the legal connection between the subjects. All applications complain about the decision by the BİK to suspend the newspapers’ official announcements and advertisements due to news articles and opinion pieces published in national newspapers.
It was accepted that the penalties imposed on the applicant newspapers in the form of suspending their official announcements and advertisements for various periods of time constituted an interference with the applicants’ freedom of expression and press freedom.
The legal basis for the interference is Article 49 of Law No. 195. The Constitutional Court has previously determined in its decisions on Uğurlu Gazetecilik Basın Yayın Mat. Rek. Ltd. Şti. (3) and Estetik Yayıncılık Anonim Şirketi that there are some constitutional problems with the application of this article of the law, without making a further assessment of its legality. However, considering that similar applications continued to be brought before the Constitutional Court, indicating the continuity of the problematic practice, the Constitutional Court examined Article 49 of Law No. 195 in greater detail in terms of the legality criterion of the intervention.
In this examination, it was first explained that Article 49 of Law No. 195 leaves it entirely to the discretion of the BİK to determine which acts are subject to punishment and how, that no framework provisions have been established for the General Assembly decisions taken by the BİK and the Management Board decisions, and that the law allows for an undefined regulation. According to the Constitutional Court, the rule in Article 49 of Law No. 195, which makes it impossible for applicants to anticipate their rights and obligations and organize their conduct accordingly, cannot be said to satisfy the condition of foreseeability.
In addition, it was emphasized that the Law proposes a formal examination of documents; courts do not resolve the substance of the case brought before them in practice and only check whether the penalty was imposed following the prescribed procedure. Attention has been drawn to the fact that the lack of established practice regarding the procedure proposed in the article of the Law under review has further deepened the uncertainty in the Law regarding how to conduct proceedings in cases before the courts of first instance and in decisions rendered on this matter at the appeal stage.
The Constitutional Court concluded that the interventions subject to the application violated the applicants’ rights protected by Articles 26 and 28 of the Constitution in terms of the legality criterion and that the violation stemmed directly from the law due to the lack of fundamental guarantees regarding the protection of freedom of expression and the press.
Continuing its examination within the framework of the requirements of a democratic society order in light of the circumstances of the specific case, the Constitutional Court concluded that the BİK had failed to strike a fair balance between the conflicting rights in the applications at issue. Looking at the reasoned decisions of the civil courts of first instance reviewing appeals against BİK decisions, it was seen that sometimes BİK’s assessments were directly taken as a basis, but whether these assessments met the balancing criteria was not reviewed; in most cases, it was merely stated that BİK’s decisions were in accordance with procedure and law, and no further assessment was made.
Therefore, the decisions to impose official announcement and advertising suspension penalties in the context of the news items subject to appeal have not been evaluated within the scope of balancing criteria between conflicting rights. Furthermore, it is unclear whether the applicants’ claims and evidence regarding the reason and timing of the writing of the news items, against whom and in what manner they were written, and whether elements such as background information and factual basis were present were examined, and if so, why they were not taken into account in the assessment.
In all of the applications combined in this file, the content subject to punishment relates to news items published in the printed editions or on the websites of newspapers with national circulation. With regard to these news items, the BİK and, subsequently, the civil courts of first instance must apply the balancing criteria very strictly and consider the aforementioned form of intervention as a last resort. However, it has been understood that in the cases subject to the application, the civil courts of first instance rendered their decisions without making the aforementioned assessment.
In this context, an assessment of the current applications indicates that such repetitive decisions point to a systematic problem. It has been observed that the means used to interfere with the applicants’ freedom of the press lack legal certainty, and that the reasons for their use have not been demonstrated with relevant and sufficient justification. Furthermore, it has been concluded that such decisions, which impose penalties without relevant and sufficient justification, cannot be considered proportionate interventions in freedom of expression and the press due to their deterrent effect.
The Constitutional Court has ruled that freedom of expression and the press have been violated based on the stated reasons and has decided to apply the pilot decision procedure.
The Existence of a Systematic Problem
In light of all assessments, there is a clear need to re-examine the current system to prevent similar new violations.
Looking at the penalties imposed by the Press Council, it has been observed that the authority granted to the Council has gone beyond the purpose of regulating the ethical values of the press and has now become a means of punishment that could have a deterrent effect on some members of the press, causing a systematic problem.
Undoubtedly, it is within the discretion of the legislative body to enact legal regulations, which are an important part of the state policy to be adopted in the field of press freedom. In order for the BİK’s interventions in press freedom under Article 49 of Law No. 195 to be in line with the requirements of a democratic society under Article 13 of the Constitution and not to violate Article 26 of the Constitution, it would be beneficial to take into account the following minimum standards/recommendations in the new legal regulations to be made:
The framework of the conditions for official announcement and advertising suspension penalties in Article 49 of the Law should be outlined, and the article should be reorganized in terms of form and substance with clear and precise wording.
The limits of the protection offered by the aforementioned article to enhance the ethical qualities of the press should be clarified, and criteria such as determining a benchmark/threshold value for which actions would violate these qualities should be established.
While regulating the appeal process for official announcement and advertisement suspension penalties in the aforementioned article, the capacity in which the courts of appeal will hear these cases and the scope of the trial procedure they will apply in this context should be clearly reorganized.
