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REPUBLIC OF TÜRKİYE
ANKARA REGIONAL ADMINISTRATIVE COURT
7TH ADMINISTRATIVE LAW CHAMBER
Merits No: 2017/169
Decision No: 2017/251
Date of Decision: 20.09.2017
SUMMARY OF REQUEST: In the lawsuit filed seeking the cancellation of Decision No. 2016/163572 dated 30/03/2016 of the Information and Communication Technologies Authority (BTK) Telecommunication Communication Presidency regarding the penalization of the plaintiff company with an administrative fine of 158,370.00 TL; it is requested that Decision dated 24/02/2017, Merits No. 2016/2590, Decision No. 2017/641 rendered by the Ankara 15th Administrative Court regarding the dismissal of the lawsuit be set aside as contrary to law and that the subject administrative act be cancelled.
SUMMARY OF DEFENSE: It was defended that the appellate request should be rejected, contending that there is no illegality in the Court's decision.
The Ankara Regional Administrative Court 7th Administrative Law Chamber, having deemed the plaintiff's request for a hearing not well-founded pursuant to Article 17/2 of Law No. 2577, examined the case file and deliberated the necessity in accordance with the amended Article 45 of Law No. 2577:
The lawsuit was filed seeking the cancellation of Act No. 2016/163572 dated 30/03/2016 of the Information and Communication Technologies Authority Telecommunication Communication Presidency regarding the penalization of Plaintiff F1 Inc. with an administrative fine of 158,370.00 TL.
Article 8/A of Law No. 5651 on the Regulation of Publications Made on the Internet and Fighting Against Crimes Committed Means of These Publications provides:
"(1) Based on one or several grounds of protecting the right to life, the security of life and property of individuals, national security and public order, preventing the commission of crimes, or protecting public health, a decision to remove content and/or block access regarding a publication on the internet may be rendered by the Presidency upon the request of the Prime Ministry or relevant ministries concerning national security, public order, crime prevention, or public health, in cases where delay is detrimental or by order of a judge. The decision shall be immediately notified by the Presidency to access providers and relevant content and hosting providers. The requirements of the decision to remove content and/or block access shall be executed immediately and within four hours at the latest starting from the notification of the decision.
(2) The decision to remove content and/or block access rendered by the Presidency upon request of the Prime Ministry or relevant Ministries shall be submitted by the Presidency for the approval of the judge of the peace criminal court within twenty-four hours. The judge announces the decision within forty-eight hours; otherwise, the decision automatically lapses.
(3) Access blocking decisions rendered within the scope of this article shall be given via the method of blocking access to the content regarding the specific publication, part, or section (in the form of URL, etc.) where the violation occurred. However, in cases where blocking access to the content relating to the violation is technically impossible or where the violation cannot be prevented by blocking access to the relevant content, a decision to block access to the entire website may be rendered.
(4) A criminal complaint shall be filed by the Presidency with the Chief Public Prosecutor's Office regarding those who create and disseminate internet content forming the subject of a crime within the scope of this article. Information necessary to reach the perpetrators of these crimes shall be delivered by content, hosting, and access providers to judicial authorities upon court order. Officials of content, hosting, and access providers who fail to deliver this information shall be punished by a judicial fine from three thousand days to ten thousand days, provided the act does not constitute another crime requiring a heavier penalty.
(5) Access providers and relevant content and hosting providers who fail to fulfill the requirements of the content removal and/or access blocking decision rendered pursuant to this article shall be imposed an administrative fine from fifty thousand Turkish liras to five hundred thousand Turkish liras by the Presidency."
Article 10 of the European Convention on Human Rights regulating freedom of expression provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
In the European Court of Human Rights Zana v. Turkey judgment (25.11.1997), while examining the applicant's conviction under domestic law for praising acts criminalized by law and endangering public safety due to statements made in an interview ("...I support the PKK national liberation movement. We are not in favor of massacres, wrong things happen everywhere. Women and children are killed by mistake..."), the Court observed that the expressions used in the interview were contradictory. Taking into account the events occurring in the Southeastern region of Türkiye at that period and the applicant's status as an influential figure in the region, the Court held that these declarations were of a nature to further escalate tensions, and that defining the PKK—which carried out bloody actions in the region—as a national liberation movement constituted a threat to Türkiye's territorial integrity. Consequently, the Court ruled that the conviction answered a pressing social need in a democratic society. It was thus explicitly stated that defending acts criminalized by domestic law and endangering public safety cannot be accepted as freedom of expression.
Decisions of the Constitutional Court resulting from individual applications follow the same direction: "Freedom of thought and expression is not absolute and unlimited. In this context, attitudes and conduct that violate the rights and freedoms of individuals must be avoided while exercising freedom of thought and expression." (AYM Decision Date: 02.04.2014).
From the examination of the case file; it is understood that upon determining that terror propaganda was conducted on the Twitter account named "X1" (URL), that the state's fight against terrorism was degraded, and that posts were made aimed at presenting the acts of the PKK and its renamed derivative terror organizations as justified and harmless, a request for content removal and/or access blocking was made; that the posts made from the account included expressions explicitly praising terrorism, conducting terror propaganda, and inciting and encouraging the public to hostility, violence, and armed rebellion, such as:
"Where the person personally responsible for and whitewashing the deaths of dozens of people is the same, it is not called HOMELAND, but EXPLOITATION HELL!!!"
"Fascist state, take your hands off KURDISTAN now!!!" (Link:
"I know I live in a very wretched state, but speak up, cursed citizen, speak up!!!"
"The trenches will not remain as they are. A new YPG is being created behind the trenches. The state will pray to all gods so that snow never melts this winter"
"Everyone talks, 'you' act, and you are right, there is no you or me, there is Türkiye, a 'vile Türkiye', a vile people, a vile government, a vile media!"
"The Terrorist Organization Called State- K1 Link: via X2"
"One needs to get the hell out of here, not escaping from a pool of blood, but on the contrary; to be fully soaked in blood. Perhaps to let live rather than being forced to live"
"The STATE that commits new massacres and provocations to cover up its injustice on the anniversary of the massacre is called CURSED #dontforgetroboski#cizre"
"On the soil of Dicle, there is no such thing as death by natural causes, there is killing, there is murder."
"Retweet (X3): Insisting on socialism is insisting on being human. K2 (under the text, a cover picture appears bearing 'SEROK APO great kurdisin leader' and containing Öcalan's silhouette)"
"Retweet (X4): Biji Berxwendana YPG, Biji Berxwenda YPG (underneath, a video containing images of terrorists appears)"
"Retweet (X5): Under the text 'People flocking to the mountains against the fortress-post in Lice have been conducting a glorious resistance for days', video footage of burning a police vehicle appears)"
Upon determining that the contents of the mentioned account violated Article 8/A of Law No. 5651, a decision to remove content and block access regarding the account at the specified (URL) address—along with a warning that judicial and administrative proceedings would be initiated under the same provision if not executed—was served on 25/07/2015 to the plaintiff company's representative in Türkiye, which is the hosting provider of these contents;
That the decision submitted for the approval of the Gölbaşı Peace Judgeship of Criminal Jurisdiction within 24 hours under the same article was approved by decision dated 27/07/2015, Miscellaneous Work No. 2015/646, ordering "the approval of the interim decision regarding content removal/access blocking pursuant to paragraph 2 of Article 8/A of Law No. 5651, based on protecting the right to life, life and property security of individuals, and crime prevention";
That despite the court decision, upon determining that the specified URL address remained in the same state and its content was not removed, a second warning was issued to the plaintiff's representative on 27/07/2015 stating "The content removal decision notified to you by the Presidency under Article 8/A of Law No. 5651 within cases where delay is detrimental has been approved by decision of the Gölbaşı Peace Judgeship of Criminal Jurisdiction dated 25.07.2015, Misc. Work No. 2015/646";
However, because no objection was filed against this decision of the Gölbaşı Peace Judgeship of Criminal Jurisdiction within the statutory period, and controls conducted after the second warning established that contents at the mentioned URL address were not removed, the sub judice lawsuit was filed upon the imposition of the subject administrative fine on 30.03.2016.
In the concrete dispute, although the plaintiff claimed that because the company's headquarters is located in the United States of America, it should be exempt from Turkish public order and not subjected to the public law regime; the Public-Private Law distinction, which constitutes fundamental sub-branches of law, also holds importance in international law. As a rule, while private law can be subjected by parties to the legal regime of a state, such a determination cannot be made for a public law regime.
Consequently, public law is a result of powers arising from states' sovereign rights. In this case, while operating in a country outside the country of origin, a natural or legal person cannot select the public law regime it wishes to be subject to, nor can such a regime be determined unilaterally. Likewise, a company providing services in a country by enabling access cannot be expected to be exempt from the legal order of the place where it provides services.
Furthermore, regarding the allegation that the defendant administration lacks jurisdiction, reference was made to the Turkish Penal Code regarding territorial application pursuant to Article 8 of the Law on Misdemeanors. Under paragraph 1 of Article 8, providing "Turkish Laws shall apply to offenses committed in Türkiye. If an act is committed partially or wholly in Türkiye, or if the result occurs in Türkiye, the offense shall be deemed committed in Türkiye", Turkish Laws shall apply to the resulting misdemeanor.
Accepting a contrary view would create inequality among individuals within the public law regime, and leaving the state's sovereign power and its associated monopoly on punishment to the discretion of another state would be incompatible with the fundamental characteristics of the Constitution. Considering that misdemeanors and crimes are subject to the public law regime, it is clear that the defendant administration indisputably holds jurisdiction to impose sanctions.
Under these circumstances, it is fixed that the plaintiff company—which admits to being a hosting provider—failed to remove the account
Although the plaintiff claims that closing the mentioned account violates freedom of expression; the decision to block access to the account was established in accordance with explicit statutory provisions and aimed at legitimate objectives of national security, public safety, public order, or crime prevention. When evaluated in terms of the necessity of this interference in a democratic society, taking into account that the Republic of Türkiye is intensively fighting terrorism, it is concluded that it answers an urgent and pressing social need.
Regarding the amount of the administrative fine; it is evaluated that statutory limits were complied with while determining the penalty; that although departing from the lower limit, the penalty was set at a rate substantially lower than the upper limit; that measures prescribed by state institutions and approved by the independent and impartial courts of the Republic of Türkiye were not executed in an environment where terror activities were so intense; and that taking into account the legitimate aim of the administrative fine and the economic scale of the target company, the principle of proportionality was not violated.
For the reasons explained; because the result of Decision dated 24/02/2017, Merits No. 2016/2590, Decision No. 2017/641 rendered by the Ankara 15th Administrative Court is appropriate, it was decided unanimously on 20/09/2017 to REJECT the plaintiff's appellate request based on the grounds specified above, to leave litigation expenses upon the appealing party, to refund the remaining advance post fee and the excess decision fee of 31.40 TL collected at the appellate stage to the relevant party upon request, with open appeal before the relevant Chamber of the Council of State within 30 days following the notification of the decision pursuant to the amended Article 46 of Law No. 2577.
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