EHRM, 18-12-2012, nr. 3111/10

The Court observes that the applicant owns and runs a website which he apparently uses in order to publish his academic work and his views on various topics. He complained of his inability to access his website as a result of a measure ordered in the context of criminal proceedings which were unconnected to his site. This amounted in his view to a prior restraint, imposed before a ruling had been given on the merits.

The Court reiterates that Article 10 does not prohibit prior restraints on publication as such. This is borne out not only by the words ‘conditions’, ‘restrictions’, ‘preventing’ and ‘prevention’ which appear in that provision, but also by the Court's judgment in The Sunday Times v. the United Kingdom (no. 1) (26 April 1979, Series A no. 30) and in markt intern Verlag GmbH and Klaus Beermann v. Germany (20 November 1989, Series A no. 165). On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. This danger also applies to publications other than periodicals that deal with a topical issue.

As regards the importance of Internet sites in the exercise of freedom of expression, the Court reiterates that, in Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) (nos. 3002/03 and 23676/03, § 27, ECHR 2009), it found as follows:

These considerations are also valid in the present case. The Court notes that Google Sites is a Google service designed to facilitate the creation and sharing of websites within a group and thus constitutes a means of exercising freedom of expression.

In that regard it points out that Article 10 guarantees freedom of expression to ‘everyone’. No distinction is made in it according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom (see Çetin and Others v. Turkey, nos. 40153/98 and 40160/98, § 57, ECHR 2003-III (extracts)). It applies not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interferes with the right to receive and impart information (see, mutatis mutandis, Autronic AG v. Switzerland, 22 May 1990, § 47, Series A no. 178). Likewise, the Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(b), Series A no. 216, and Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).

In the present case the measure blocking access to the website stemmed from a decision of the Denizli Criminal Court of First Instance. It was initially designed as a preventive measure ordered by the court in the context of the criminal proceedings brought against a third-party website under Law no. 5816 prohibiting insults against the memory of Atatürk. However, the administrative body responsible for executing the blocking order, the TİB, requested that an order be given blocking all access to Google Sites. In a decision of 24 June 2009 the Denizli Criminal Court of First Instance granted the request. Ruling on an application by the applicant to have it set aside, the Denizli Criminal Court subsequently upheld the order, taking the view that the only means of blocking access to the website that was the subject of criminal proceedings was to block access to Google Sites. The TİB therefore blocked access to the entire Google Sites domain, thereby incidentally preventing the applicant from accessing his own website. It appears from the case file that, as a result of the measure, the applicant was completely unable for an indeterminate period of time to access his own website. All his attempts to do so were unsuccessful because of the blocking order issued by the court. He can therefore legitimately claim that the measure in question affected his right to receive and impart information and ideas.

The crux of the case therefore concerns the collateral effect of a preventive measure adopted in the context of judicial proceedings. Although neither Google Sites as such nor the applicant's website was the subject of the proceedings in question, the TİB blocked access to them in order to execute the measure ordered by the Denizli Criminal Court of First Instance. The measure was to remain in place until such time as a decision was given on the merits or the illegal content of the site hosted by Google Sites was removed (section 9 of Law no. 5651). It therefore constituted a prior restraint as it was imposed before a ruling had been given on the merits.

The Court considers that, whatever its legal basis, such a measure was bound to have an influence on the accessibility of the Internet and, accordingly, engaged the responsibility of the respondent State under Article 10 (see, mutatis mutandis, Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, § 27, Series A no. 302).

It further observes that the blocking of access complained of resulted from a prohibition initially imposed on a third-party website. It was the blocking of all access to Google Sites which actually affected the applicant, who owned another website hosted on the same domain. It is true that the measure did not, strictly speaking, constitute a wholesale ban but rather a restriction on Internet access which had the effect of also blocking access to the applicant's website. Nevertheless, the fact that the effects of the restriction at issue were limited does not diminish its significance, especially since the Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest.

In sum, the Court considers that the impugned measure amounted to a restriction stemming from a preventive order blocking access to an Internet site. For the purpose of executing the latter, the court further ordered, at the request of the TİB, the blocking of access to Google Sites, which also hosted the applicant's website. The applicant was thereby prevented from accessing his own website. This circumstance is sufficient for the Court to conclude that the measure in question amounted to ‘interference by public authority’ with the applicant's right to freedom of expression, of which the freedom to receive and impart information and ideas is an integral part (see, mutatis mutandis, Ayşe Öztürk v. Turkey, no. 24914/94, § 42, 15 October 2002).

Such interference will constitute a breach of Article 10 unless it is ‘prescribed by law’, pursues one or more of the legitimate aims referred to in Article 10 § 2 and is ‘necessary in a democratic society’ to achieve those aims.

The Court reiterates at the outset that the expression ‘prescribed by law’, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law (see, among many other authorities, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010). According to the Court's established case-law, a rule is ‘foreseeable’ if it is formulated with sufficient precision to enable any individual — if need be with appropriate advice — to regulate his conduct (see, among many other authorities, RTBF v. Belgium, no. 50084/06, § 103, ECHR 2011 (extracts), and Akçam v. Turkey, no. 32964/96, § 87, 30 October 2001).

In the instant case the Court observes that the blocking of access to the website which was the subject of judicial proceedings had a statutory basis, namely section 8(1) of Law no. 5651. As to whether section 8(1) of Law no. 5651 also satisfied the requirements of accessibility and foreseeability, the applicant submitted that this question should be answered in the negative, as the provision in question was too uncertain in his view.

The Court has consistently held that, for domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see, among many other authorities, Sunday Times, cited above, § 49, and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I).

The question here is whether, at the time the blocking order was issued, a clear and precise rule existed enabling the applicant to regulate his conduct in the matter.

The Court observes that, under section 8(1) of Law no. 5651, a judge may order the blocking of access to ‘Internet publications where there are sufficient grounds to suspect that their content is such as to amount to … offences.’ Section 2 of the same Law provides two definitions of the notion of ‘publication’: according to sub-paragraph (ğ) ‘Internet publication (yayın) [shall mean] data which can be accessed via the Internet by an indeterminate number of persons’. Sub-paragraph (l), meanwhile, states that ‘[p]ublication (yayın) [shall mean] publication on the Internet’. Even though the notion of ‘publication’ appears to be very broad and may cover all kinds of data published on the Internet, it is clear that neither the applicant's website nor Google Sites per se fell within the scope of section 8(1) of Law no. 5651, since the legality of their content, within the meaning of that provision, was not at issue in the present case.

Neither Google Sites nor the applicant's website was the subject of judicial proceedings for the purposes of section 8(1) of Law no. 5651. It is clear from the fact that this provision was referred to in the decision of 24 June 2009 (see paragraph 10 above) that Google Sites was held to be liable for the content of a website which it hosted. However, sections 4, 5 and 6 of Law no. 5651, which deal with the liability of content providers, hosting service providers and access providers, make no provision for a wholesale blocking of access such as that ordered in the present case. Nor has it been maintained that the law authorised the blocking of an entire Internet domain like Google Sites which allows the exchange of ideas and information. Moreover, there is nothing in the case file to indicate that Google Sites was notified under section 5(2) of Law no. 5651 that it was hosting illegal content, or that it refused to comply with an interim measure concerning a site that was the subject of pending criminal proceedings.

The Court also observes that section 8, paragraphs (3) and (4), of Law no. 5651 conferred extensive powers on an administrative body (the TİB) in the implementation of a blocking order originally issued in relation to a specified site. The facts of the case demonstrate that the TİB could request the extension of the scope of a blocking order even though no proceedings had been brought against the website or domain in question and no real need for wholesale blocking had been established.

As indicated above (see paragraph 47), the Court considers that such prior restraints are not necessarily incompatible with the Convention as a matter of principle. However, a legal framework is required, ensuring both tight control over the scope of bans and effective judicial review to prevent any abuse of power (see Association Ekin v. France, no. 39288/98, § 58, ECHR 2001-VIII, and, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 55, ECHR 2011 (extracts)). In that regard, the judicial review of such a measure, based on a weighing-up of the competing interests at stake and designed to strike a balance between them, is inconceivable without a framework establishing precise and specific rules regarding the application of preventive restrictions on freedom of expression (see RTBF, cited above, § 114). The Court observes that when the Denizli Criminal Court of First Instance decided to block all access to Google Sites under Law no. 5651, it merely referred to a recommendation from the TİB, without ascertaining whether a less far-reaching measure could have been taken to block access specifically to the offending website (see paragraph 10 above).

The Court also notes that in his application of 1 July 2009 to have the blocking order set aside one of the applicant's main arguments was that, to prevent other websites from being affected by the measure in question, a method should have been chosen whereby only the offending website was made inaccessible.

However, there is no indication that the judges considering the application sought to weigh up the various interests at stake, in particular by assessing the need to block all access to Google Sites. In the Court's view, this shortcoming was simply a consequence of the wording of section 8 of Law no. 5651 itself, which did not lay down any obligation for the domestic courts to examine whether the wholesale blocking of Google Sites was necessary, having regard to the criteria established and applied by the Court under Article 10 of the Convention. Such an obligation, however, flows directly from the Convention and from the case-law of the Convention institutions. In reaching their decision, the courts simply found it established that the only means of blocking access to the offending website in accordance with the order made to that effect was to block all access to Google Sites (see paragraphs 8, 10 and 13 above). However, in the Court's view, they should have taken into consideration, among other elements, the fact that such a measure, by rendering large quantities of information inaccessible, substantially restricted the rights of Internet users and had a significant collateral effect.

In the light of these considerations and of its examination of the legislation in question as applied in the instant case, the Court concludes that the interference resulting from the application of section 8 of Law no. 5651 did not satisfy the foreseeability requirement under the Convention and did not afford the applicant the degree of protection to which he was entitled by the rule of law in a democratic society. Furthermore, the provision in question appears to be in direct conflict with the actual wording of paragraph 1 of Article 10 of the Convention, according to which the rights set forth in that Article are secured ‘regardless of frontiers’ (see, to the same effect, Association Ekin, cited above, § 62).

The Court further observes that the measure in question produced arbitrary effects and could not be said to have been aimed solely at blocking access to the offending website, since it consisted in the wholesale blocking of all the sites hosted by Google Sites. Furthermore, the judicial-review procedures concerning the blocking of Internet sites are insufficient to meet the criteria for avoiding abuse, as domestic law does not provide for any safeguards to ensure that a blocking order in respect of a specific site is not used as a means of blocking access in general.

Accordingly, there has been a violation of Article 10 of the Convention.

In view of that conclusion, the Court does not consider it necessary in the instant case to examine whether the other requirements of paragraph 2 of Article 10 have been met.