Exploring New Frontiers in the Interface between Free Speech and Access Bans - The ECHR's Case of Ahmet Yıldırım v. Turkey

Gonenc Gurkaynak, Ilay Yilmaz, Derya Durlu

Abstract


For the first time in its history, the European Court of Human Rights (“ECHR” or “Court”) decided[1] on December 18, 2012 that Article 10[2] of the European Convention on Human Rights (“Convention”) was violated by the access ban decisions given by a Turkish court, the Denizli Criminal Court of Peace on June 23 and 24, 2009, with respect to Google Sites[3] for the reason that the content broadcasted on a website created on Google Sites violated Turkish laws (altogether, the “Case”).[4]

 

As the crossroads of freedom of expression and internet law become ever more intertwined, the limits to protecting inherent rights may be susceptible to being trusted by governments and regulators intending to protect the interests of the individuals in lieu of free flow of information over the internet. In the backdrop of contemporary discussions on freedom of expression, this paper delves into exploring the legal implications of the Court’s case by initially outlining the events that lead to the ECHR and the Court’s analyses of the subject matter. The paper will thereafter delve into the significance and prevalence of the Case, and how access ban decisions given over websites should be evaluated in light of the pertinent provisions of the Convention regulating freedom of speech and access to information.


[1] Ahmet Yıldırım v. Turkey, No. 3111/10, December 18, 2012.

[2] Article 10, European Convention on Human Rights: “Freedom of expression”: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.

[3] The Google Sites service is a component of the application, Google Apps, and a module for the creation and hosting of individual websites (available at http://sites.google.com).

[4] Pursuant to Articles 43 and 44 of the Convention, the ECHR decision is not final as of the date when this paper was published. Parties may request that the case be referred to the Grand Chamber of the Court within three-months as of the date when the Court decided the case (i.e. until March 18, 2013) (Article 44 (2): “The judgment of a Chamber shall become final (a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber rejects the request to refer under Article 43.” (emphasis added)). As soon as a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.


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