Removal of Internet Content and Access-Blocking in Personal Rights Infringements In Türkiye

A) Annulment of Article 9 of Law No. 5651 and the Resulting Problematic Situation

Personal rights infringements, which represent the primary crux of rights violations in the online sphere, were previously protected under Article 9 within the former statutory scheme of Law No. 5651. However, since the Constitutional Court annulled the entire provision—in my view, without apprehending the complete picture—this protection has migrated to the jurisdiction of the civil courts.[1] The Court’s rationale for annulment rested fundamentally on the absence of adversarial proceedings before the Peace Judgeships of Criminal Matters and the lack of temporal limitation on access-blocking orders.

The Court had, from the outset, routinely criticized the non-adversarial system of the Peace Judgeships of Criminal Matters in its individual application judgments.[2] In academic jurisprudence as well, framed around a freedom of expression and media-centric perspective, Article 9 of Law No. 5651 was subjected to criticism for structuring non-adversarial proceedings before the Peace Judgeships of Criminal Matters, culminating in the annulment judgment aligned with this trajectory (see §104-106).

In essence, it must be acknowledged that these criticisms are valid and that blocking access to or removing internet content without counterbalancing elements and in the absence of the content provider's defense generates a rights violation. Nevertheless, the reality overlooked across all these criticisms and within the annulment reasoning of Article 9 is that an adversarial civil trial is inherently incompatible with the vast majority of personal rights infringements occurring in the online environment. Therefore, it would have been more appropriate for the Constitutional Court to delineate—within the framework of specific counterbalancing safeguards—under which conditions access-blocking orders issued under Article 9 by the Peace Judgeships of Criminal Matters would not infringe upon freedom of expression, freedom of the press, or access to information, while simultaneously safeguarding victims' rights. Indeed, unless substantial amendments are introduced to the Code of Civil Procedure, civil procedural law appears incapable of serving as an effective remedy for disputes of this nature.

B) The Problem of Failing to View Law from the Victim's Perspective

Constitutionalism movements originating with the Enlightenment and constitutions born out of the perspective of limiting state power inherently define the boundaries restricting the curtailment of rights by the state. Ever since the Supreme Court assumed this mandate in the landmark 1803 decision Marbury v. Madison, constitutional judiciaries have served as guardians of these boundaries against legislative bodies. Consequently, the focal point of constitutional review routinely centers upon the perpetrator subject whose rights are restricted within a dispute, relegating victims to a secondary concern. To be sure, the underlying premise of this doctrine is not to marginalize victims, but rather to prevent the expansion of state intervention. However, when the state executes such interventions precisely to safeguard the victim's rights, the ultimate repercussions inevitably impact the victim.

It must not be forgotten that victims are likewise subjects of constitutional rights, and constitutional judiciaries are duty-bound to protect the rights of both perpetrators and victims through a balanced reconciliation of competing rights. Indeed, stemming from this principle in the contemporary era, the doctrine of positive state obligations regarding fundamental rights has developed alongside negative state duties within constitutional review. Furthermore, Article 6, Paragraph 1 of the European Convention on Human Rights, which governs the right to a fair trial, encompasses the victim subject in civil proceedings, safeguarding rights to effective access to court, trial within a reasonable time, and fair hearing. Consequently, in my view, thrusting victims into an ineffective, protracted, and potentially unfair process on the grounds that perpetrators' freedom of expression and press is disproportionately restricted is legally untenable.

This issue can be illustrated via a straightforward example: It is entirely possible for numerous anonymous internet users, acting either independently or in an organized fashion, to infringe upon a victim's personal rights within a matter of minutes for any given reason. How can a victim realistically seek redress before an adversarial court in such a scenario? Is it proportionate for the victim to identify the defendants, struggle with litigation costs, and pursue rights through judicial proceedings spanning several years?

Against these considerations, an objection asserting that interim measures can be granted in adversarial proceedings might well be raised. However, as noted supra, even identifying the person against whom the action should be directed is frequently impossible in the digital space. Secondly, as observed in current practice, our civil courts predominantly decline to issue preliminary injunctions in actions requesting access-blocking for personal rights infringements, holding that because access-blocking or content removal constitutes the ultimate relief sought in the action, preliminary relief achieving the final judgment outcome cannot be granted.[3] Therefore, so long as this judicial precedent persists, our existing system of adversarial civil litigation lacks adequate safeguards for personal rights violations online.

C) Mandatory Recourse to Civil Courts of First Instance in Personal Rights Infringements

Although infrequently utilized under the previous statutory scheme of Law No. 5651, Civil Courts of First Instance adjudicated such cases pursuant to authority derived from the Turkish Civil Code, and the Court of Cassation regarded this as a parallel judicial avenue alongside the Peace Judgeships of Criminal Matters under Law No. 5651.[4] The Constitutional Court similarly held that individual applications were inadmissible for failure to exhaust domestic remedies if civil actions protective of personal rights were not instituted before Civil Courts of First Instance.[5]

Following the Constitutional Court’s annulment of Article 9 of Law No. 5651, Peace Judgeships of Criminal Matters no longer possess general subject-matter jurisdiction over personal rights infringements on the internet. As Article 9 of Law No. 5651 has been annulled, the court with subject-matter jurisdiction over all personal rights violations falling outside the limited protective scopes of Articles 8, 8/A, and 9/A of the Law is now the Civil Court of First Instance. Consequently, an action requesting the cessation of an unlawful attack on personal rights must be instituted pursuant to Articles 24 and 25 of the Turkish Civil Code in cases of online personal rights violations.

D) Protracted Litigation and the Problem of Preliminary Injunctions

By virtue of the intrinsic nature of the digital environment, when infringements are not promptly halted, the violation compounds exponentially every day, disseminating widely and reaching an uncontainable threshold. The current structure of civil procedure appears ill-equipped to deliver such promptness.

The problem originates at the threshold question of against whom the action should be directed. If the rights violation stems from content hosted on an internet platform with a disclosed identity, identifying a defendant holding the capacity of content provider or platform operator presents no major obstacle. In other scenarios, establishing the defendant's identity proves exceptionally difficult. In this context, it is worth recalling judicial precedents establishing that the duty to identify the defendant cannot be imposed solely on the plaintiff, and that actions cannot be procedurally dismissed on this ground.[6] However, this raises a constitutional problem in its own right. Mandating that a civil court engage in forensic IT investigations analogous to the investigative measures regulated under Articles 134 and 135 of the Code of Criminal Procedure merely to ascertain the defendant's identity is highly problematic under the principles of statutory legality and proportionality. While Peace Judgeships of Criminal Matters could issue a direct violation order without identifying the natural or legal person publishing the content, adversarial civil courts are precluded from doing so.

The second issue pertains to litigation expenses. For example, where identical content violating personal rights is published across numerous distinct platforms, the problem of joining multiple defendants arises. At times, defining the boundaries of freedom of expression and press is complex. Thus, in such grey areas, victims may endure significant hardship due to court fees and potential adverse attorney fees in the event of losing the action, or may choose to forgo litigation altogether out of fear.

The third and most formidable issue is protracted litigation. For instance, a false news report possesses the potential to deeply disrupt a person's family, peer group, education, professional career, and every social interaction. When a false report accusing an individual of theft is litigated, removing such content years later after appellate remedies are exhausted fails to achieve justice. Moreover, those who viewed the content over the years may remain entirely unaware of a court judgment even if published, and an access block issued years after the fact can hardly restore destroyed dignity.

The remedy for protracted judicial proceedings is undoubtedly an access-blocking order issued as a preliminary injunction. However, the impediment here, as referenced supra, resides in judicial precedents dictating that an access-blocking order possessing the same character as the final judgment cannot be granted via preliminary relief. I submit that the judiciary—which has developed an opposing jurisprudence in intellectual and industrial property law[7] by granting access-blocking injunctions as preliminary relief—should adopt an identical construction regarding personal rights infringements.

E) The Imperative for Immediate Enactment of the Legislative Proposal

In the draft bill dated November 27, 2025, Article 9 of Law No. 5651 is restructured, once again assigning personal rights violations on the internet to the jurisdiction of the Peace Judgeships of Criminal Matters. However, the proposal has yet to achieve statutory enactment. Under the present structure of Law No. 5651, among all personal rights, only privacy violations benefit from an expedited application mechanism directly to the Cybersecurity Presidency (formerly the BTK). The Presidency's determinations remain subject to judicial confirmation by Peace Judgeships of Criminal Matters. Consequently, while Peace Judgeships of Criminal Matters retain jurisdiction over privacy disputes, they remain divested of jurisdiction over other personal rights disputes as a result of the Constitutional Court's annulment and the failure to enact new legislation. In my view, this situation contradicts the internal logic and spirit of the statute. Furthermore, despite completely annulling Article 9, the Constitutional Court's failure to address the far less protective mechanism under Article 9/A concerning privacy remains open to critique.

Conclusion

In conclusion, internet-based personal rights infringements currently remain within the domain of civil jurisdiction, subject to limited exceptions. However, this arrangement fails to align with the material realities of the digital environment. Consequently, there is immense public benefit in the immediate statutory enactment of the pending draft bill returning these matters to the subject-matter jurisdiction of the Peace Judgeships of Criminal Matters.

Atty. Alp Öztekin, LL.M.

alpozztekin@gmail.com

[1] For the relevant judgment, see Constitutional Court, E. 2020/76, K. 2023/172.

[2] Constitutional Court, Application of C.K., Application No: 2014/19685.

[3] "...It is understood that the request sought the removal of content and access-blocking via preliminary injunction until the conclusion of the lawsuit regarding news published on the website ...Com, that this requires full trial proceedings, and that according to the specifics of the concrete case, a preliminary injunction cannot be granted via an interlocutory order that would yield the result of a final judgment..." Istanbul Regional Court of Justice, 4th Civil Chamber, E. 2024/1741, K. 2024/1932 / To the same effect, Istanbul Regional Court of Justice, 4th Civil Chamber, E. 2024/562, K. 2024/686.

[4] 4th Civil Chamber of the Court of Cassation, E. 2015/13252, K. 2016/2190 / For a contrary view, see 19th Criminal Chamber of the Court of Cassation, E. 2017/3289, K. 2018/1063.

[5] Constitutional Court, Application of C.K., Application No: 2014/19685.

[6] 4th Civil Chamber of the Court of Cassation, E. 2018/5140, K. 2019/1732.

[7] Istanbul Regional Court of Justice, 44th Civil Chamber, E. 2026/451, K. 2026/715.