Last Updated on May 17, 2021 by LawEuro
Information Note on the Court’s case-law 251
May 2021
Akdeniz and Others v. Turkey – 41139/15 and 41146/15
Judgment 4.5.2021 [Section II]
Article 10
Interim injunction without a clear and foreseeable legal basis, banning the dissemination of information on a parliamentary inquiry: violation
Article 34
Victim
Blanket ban on the dissemination of information on a parliamentary inquiry: Victim status granted to a journalist but not to academics using social media
Facts – On 25 November 2014, in response to a request from the Chairman of the Parliamentary Commission mandated to investigate allegations of corruption against four former ministers, a justice of the peace issued an injunction prohibiting the dissemination and publication, via any medium, of information on the content of the intelligence and documentation requested and obtained by the Commission and on statements by persons interviewed by the latter. The appeals lodged by the applicants, Ms Güven, a journalist, and Mr Akdeniz and Mr Altıparmak, academics and well-known users of social media platforms, were dismissed. The measure was terminated on 9 January 2015.
Law – Article 34:
As regards whether an applicant can claim to be a victim of a general prohibition, “purely hypothetical risks” of his or her suffering a deterrent or “chilling” effect are insufficient to constitute an interference within the meaning of Article 10 or to grant him or her victim status (see Schweizerische Radio- und Fernsehgesellschaft and Others (dec)).
(a) The nature and scope of the impugned measure:
A measure consisting in prohibiting the publication and dissemination of possible information via any medium raised a freedom of expression issue per se. The impugned injunction, which had a very broad scope covering not only printed and visual material but also any type of information published on the Internet, had amounted to a preventive measure which had been ordered in the framework of a parliamentary inquiry in order to prevent the publication and dissemination of any possible information.
The interim injunction in question was akin to a preventive measure in that it prohibited the publication of any information, whether damaging or not, on virtually all the aspects of the ongoing parliamentary inquiry.
The principle of investigative secrecy which is applicable at the investigation stage does not automatically require such a prohibition, but that principle does impose a general obligation to refrain from disclosing confidential facts relating to an inquiry or an investigation. In that regard, the Turkish Criminal Code makes it an offence, ex post facto, to infringe investigative confidentiality, albeit without imposing a general ban on publishing the content of the measures adopted during a given investigation. Moreover, it guarantees the right to publish information on a live criminal investigation, within the limits of the right to impart information. Accordingly, the interim injunction in question did not take the form of an ex post facto “sanction” for having published information covered by investigative confidentiality or of a refusal by the authorities to impart information.
The circumstances of the present case differed from those cases in which injunctions issued by the domestic courts had concerned specific documents, the content of which had been known. Indeed, the present case concerned a general measure prohibiting the future publication and dissemination of possible information on a live parliamentary inquiry, rather than any specific document. This means that the scope of the impugned measure is comparable to those examined in the judgments in the cases of Çetin and Others v. Turkey, Ürper and Ohers v. Turkey and Cumhuriyet Vakfı and Others v. Turkey, in which the impugned measures had concerned future publications whose had not been known at the time when the injunctions had been issued.
(b) Consequences of the impugned measure for the applicants’ rights:
The Constitutional Court, in assessing the impugned measure, had interpreted the “victim” concept in a broad manner, considering that journalists and organs of the press, as well as a Member of Parliament, could claim to have been victims of an interference in the exercise of their right to freedom of expression, having regard, in particular, to the role played by those persons in public debates on subjects of great importance to society and in influencing public opinion on those subjects. In the light of that recent case-law, the Court was able to accept that the right of Ms Güven, a journalist, to the freedom to impart information and ideas had been affected by the impugned decision inasmuch as she had been unable, even for a fairly short period, to publish or disseminate information, to share her ideas on a topical issue which would certainly have attracted considerable public interest. The Court attached weight to the fact that at the material time Ms Güven had been a political commentator and TV news presenter on a national television channel. Furthermore, the gathering of information, which was inherent in the freedom of the press, was also considered as a vital precondition for operating as a journalist. Obstacles designed to restrict publication of information were liable to deter persons working in the media or related fields from investigating certain subjects of public interest. In the context of the debate on a matter of public interest, that type of measure was liable to deter journalists from contributing to public discussions of issues important to community life.
The other two applicants, Mr Akdeniz and Mr Altıparmak, are academics working in the freedom of expression field, and are also popular users of social media platforms such as Twitter and Facebook, with thousands of followers. With reference to the emergence of “citizen journalism”, they claimed to use various facilities and the aforementioned platforms to share their views on topical issues. However, the mere fact that those two applicants – like all other citizens in Turkey – had sustained the indirect effects of the impugned measure was insufficient to grant them “victim” status within the meaning of Article 34. The decision in the case of Cengiz and Others v. Turkey blocking access to YouTube had indeed affected the rights of Mr Akdeniz and Mr Altıparmak to receive and impart information and ideas. However, the Court had had regard to the fact that the applicants in Cengiz had been active YouTube users, had taught in different universities, had worked in the human rights field, had had access to different visual materials on the site in question and had shared their projects through the intermediary of their YouTube accounts. None of that applied to the present case.
Given that the interim injunction had been aimed not only at traditional media professionals but also at Internet users, such as bloggers and popular social media users, Mr Akdeniz and Mr Altıparmak could legitimately claim to have sustained the indirect effects of the impugned measure. Nevertheless, over the brief period when the measure had been in force, the two applicants had never been forbidden to comment on the live inquiry via any medium. They therefore complained about a general measure preventing the press and the other media from communicating information concerning specific aspects of the parliamentary inquiry.
Furthermore, they claimed that they had been affected by the impugned measure relying on their status as academics working in the sphere of freedom of expression. In that connection, as regards the right of access to information, university researchers and the authors of works on matters of public interest also benefited from a high level of protection. Moreover, academic freedom was not confined to university or scientific research, but also covered the freedom of academics freely to express their viewpoints and opinions, even where they were controversial or unpopular, in their fields of research, professional expertise and competence. However, the applicants did not complain of having been refused access to any specific information they might have required. Furthermore, there was nothing to suggest that the impugned measure had targeted or infringed the applicants’ academic freedom. Indeed, they had not been prevented from publishing their comments or academic studies on the parliamentary inquiry, complying, during the short period in question, within the limits imposed by the principle of the confidentiality of the work of parliamentary commissions.
Furthermore, if an applicant is to claim victim status he or she must present reasonable and cogent evidence of the probability of an actual violation regarding him or her personally; mere suspicions or conjectures are insufficient in that regard. The Court took the view that the mere fact that Mr Akdeniz and Mr Altıparmak, in their capacity as academics and popular users of the social media platforms, were indirectly affected by the impugned measure was insufficient to make them “victims” within the meaning of Article 34. Indeed, those two applicants had failed to demonstrate how the impugned prohibition affected them directly.
Conclusion: preliminary objection rejected (as regards Ms Güven, journalist); inadmissible (as incompatible ratione personae) in connection with Mr Akdeniz and Mr Altıparmak.
Article 10:
The impugned injunction, which had amounted to a preventive measure aimed at prohibiting any future dissemination and publication of information, had had major repercussions on the applicant’s exercise of her right to freedom of expression on a topical issue. Accordingly, the impugned measure amounted to an interference in the exercise of her rights as secured under Article 10.
The impugned measure as ordered by a justice of the peace had had a legal basis. However, the Court endorsed the Constitutional Court’s conclusion that section 3(2) of the Press Act had not satisfied the “foreseeability” and “clarity” criteria and that although Article 28 § 5 of the Constitution authorised recourse to a prohibition of publication subject to specific conditions, there was no legislative provision authorising a ban on publication in the framework of criminal investigations fulfilling the “foreseeability” and “clarity” conditions. The impugned interference had therefore lacked any “legal basis”.
Conclusion: violation (unanimous).
Article 41: no award made in the absence of any claim.
(See also Çetin and Others v. Turkey, 40153/98 and 40160/98, 13 February 2003, Legal summary; Leempoel & S.A. ED. Ciné Revue v. Belgium, 64772/01, 9 November 2006, Legal summary; Ürper and Others v. Turkey, 14526/07 et al., 20 October 2009, Legal summary; Bedat v. Switzerland [GC], 56925/08, 29 March 2013, Legal summary; Cumhuriyet Vakfı and Others v. Turkey, 28255/07, 8 October 2013, Legal summary; Cengiz and Others v. Turkey, 48226/10 and 14027/11, 1 December 2015, Legal summary; Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland (dec), 68995/13, 13 November 2019, Legal summary)
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