The Facts
The plaintiffs were publishers of national newspapers during the period in question. They objected to the Press Advertising Authority’s (BİK) decision to suspend its official announcements and advertisements in their newspapers for varying periods of time due to certain news articles and opinion pieces published therein. Their objections were rejected by the relevant courts of first instance, and the plaintiffs filed separate individual applications with the Constitutional Court.
Claims: The applicants argued that the decision to suspend their official announcements and advertisements for various periods due to news and opinion articles published in their newspapers violated their freedom of expression and press freedom. 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 BİK’s decision to suspend the newspapers’ official announcements and advertisements due to news and opinion articles 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 previously ruled in the cases of Uğurlu Gazetecilik Basın Yayın Mat. Rek. Ltd. Şti. (3) and In its decisions regarding Estetik Yayıncılık Anonim Şirketi, the Constitutional Court found that there were some constitutional issues in the application of this article of the law, but did not make a separate assessment regarding its legality.
However, considering that similar applications continued to be submitted to the Constitutional Court and that the problematic application continued, the Constitutional Court examined Article 49 of Law No. 195 in more detail in terms of the legality criterion of the intervention.
In this examination, it was first explained that Article 49 of Law No. 195 left the determination of which acts would be punished and how entirely to the discretion of the BİK, that no framework provisions were established for the General Assembly decisions and Executive Board decisions taken by the BİK, and that the law allowed 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 predict their rights and obligations in advance and to regulate their behavior accordingly, cannot be said to satisfy the condition of foreseeability.
Furthermore, it was emphasized that the Law provides for a formal examination of documents, that courts do not rule on the merits of the case before them in practice, and that they only examine whether the penalty was imposed in accordance with the prescribed procedure. The absence of an established practice regarding the procedure proposed in the examined article of the Law
The Law has further deepened the uncertainty regarding how trials should be conducted in first instance courts and in decisions rendered at the appellate stage in this regard.
Th e Constitutional Court concluded that the interventions subject to the application violated the applicants’ rights protected under 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 absence of fundamental safeguards for the protection of freedom of expression and the press.
The Constitutional Court, continuing its examination within the framework of the requirements of a democratic society in light of the circumstances of the specific case, concluded that the BİK did not strike a fair balance between the conflicting rights in the applications in question. Looking at the reasoned decisions of the courts of first instance reviewing appeals against BİK decisions, it was seen that sometimes BİK’s assessments were directly adopted, but whether these assessments complied with the balance criteria was not examined; in most cases, it was stated that BİK decisions were in accordance with procedure and law, and no further assessment was made.
Therefore, the official announcement and advertising suspension penalties imposed in the context of the news items subject to objection have not been evaluated within the scope of the criterion of establishing a balance between conflicting rights.
Furthermore, it is unclear whether the applicants’ claims and evidence regarding the existence of elements such as the reason and timing of the news articles, against whom and in what manner they were written, background information, and factual basis 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 published in the printed editions of national newspapers or on websites. With regard to this news, the BİK and subsequently the civil courts of first instance should apply the balancing criteria very strictly and consider the above-mentioned form of intervention as a last resort. However, it has been understood that the civil courts of first instance decided on the cases subject to the application without making the above-mentioned assessment.
In this context, when the current applications are evaluated, it is seen that such repeated decisions point to a systematic problem. It has been observed that the tools used to interfere with the applicants’ freedom of the press lack legal certainty and that the reasons for using these tools have not been presented with relevant and sufficient justification. Furthermore, it has been concluded that such decisions imposing penalties without relevant and sufficient justification cannot be considered proportionate interventions in freedom of expression and the press due to their deterrent effects.
The Constitutional Court ruled that freedom of expression and the press had been violated for the reasons stated and decided to apply the pilot decision procedure.
The Existence of a Systematic Problem
In light of all assessments, it is clear that the current system needs to be reviewed in order to prevent similar new violations.
Looking at the penalties imposed by the Press Council, it is evident that the authority granted to the Council has gone beyond the purpose of regulating the ethical values of the press and has become a means of punishment that could have a deterrent effect on some members of the press, creating a systematic problem.
The enactment of legal regulations, which are an important part of the state policy to be adopted in the field of press freedom, is undoubtedly at the discretion of the legislative body. In order for the BİK’s interventions in press freedom under Article 49 of Law No. 195 to be compatible 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 the following minimum standards/recommendations into account in the new legal regulations to be made:
The conditions for penalties related to the suspension of announcements and advertisements, as outlined in Article 49 of the Law, must be clearly defined, and the article must be rewritten in a clear and unambiguous manner in terms of both form and substance.
The limits of the protection provided by the article in question to enhance the ethical qualities of the press should be clarified, and criteria should be introduced, such as determining the threshold value of actions that would violate these qualities.
While regulating the appeal procedures for penalties related to the suspension of advertisements and commercials in the article in question, 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.