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In Turkey, public discussions of the specific issue of online harassment of journalists appear to be subsumed under the more general problems relating to freedom of the press and the prosecution of journalists, which have been heavily commented upon by domestic and international observers. Under Turkish constitutional law, freedom of expression is protected and journalists, to the extent they may be considered public figures, are expected to tolerate more severe public criticism than private citizens. This expectation, however, is only relevant to criticism that contributes to a debate that is in the public interest. No specific legal framework exists for the protection of journalists from online harassment, but they may be protected under several generally applicable provisions in the Turkish Penal Code that bar various types of harassment via internet communications. In addition, Law No. 5651 provides a controversial and widely criticized process for the blocking of internet content that violates a complainant’s personal rights, which would likely apply to cases of online harassment. Finally, journalists may use the general provisions of the Turkish Civil Code to ask a court to stop unlawful attacks on their personal rights.
I. Constitutional Freedom of Expression and the Duty to Tolerate Criticism
A. Protected Expression and the Public Figure Doctrine
Article 26 of the Constitution of Turkey enshrines “the freedom of expression and dissemination of thought.” In determining the theoretical limits of this right, it appears that the Constitutional Court of Turkey (CCT) largely follows the jurisprudence of the European Court of Human Rights (ECtHR) regarding article 10 of the European Convention on Human Rights. In light of the ECtHR’s case law, the CCT has developed its doctrine of a “hierarchy” of protected expression that determines the scope of allowable interference with freedom of expression, taking into account the qualities of the “person who was the target of the expression and the content of the expression.” Echoing the ECtHR’s jurisprudence, political expression is afforded the widest protection, followed by artistic and academic expression, and finally commercial expression, which is protected to a relatively lesser extent.
In the context of interference with freedom of expression for the protection of the reputation and rights of the person at which an expression is aimed, the content of the expression and the social role of the person targeted become significant. The CCT has developed a “public figure” doctrine in its case law, according to which expressions targeting persons who have become public figures, regarding whom society has a right to know about certain aspects of their lives due to the public duties they perform, enjoy a higher degree of protection than expressions targeting private citizens. While the paradigmatic example of a public figure is the politician, the CCT has found that journalists, to an extent relative to their fame, can be considered as public figures and thus must tolerate more severe criticism than private citizens.
B. Hate Speech Relief
While public figures have a duty to tolerate more severe criticism, the scope of that duty appears to be relative to the contribution that the expression in question makes to a debate related to the public interest. For instance, it appears that in light of the recently developing jurisprudence of the CCT, an expression that includes hate speech may not be considered protectable criticism under article 26 of the Constitution.
Although there are no explicit references to hate speech in the Constitution of Turkey, the CCT has found that the state has a positive obligation to provide relief against expression that includes hate speech. This obligation does not necessarily require ensuring criminal prosecution of the person making the expression, but can be satisfied also by ensuring the availability of civil law processes under which persons targeted by hate speech may seek relief. The CTT has found that hate speech must be directed to a particular individual or group, and the “hate” motive must be related to the target’s membership in a particular category or to a characteristic attributable to the target. Accordingly, the Court has found that expressions that incite hate against persons based on their racial background, religious beliefs, skin color, ethnic background, gender, sexual identity, sexual orientation, disability, political orientation, age, or status of refugee, immigrant, foreigner, or membership of other disadvantaged groups is actionable.
Thus, it appears that to the extent that an expression harassing a journalist falls under the CCT’s definition of hate speech, it is probable that the expression will not find protection under article 26 of the Constitution, but may give rise to a civil remedy in certain circumstances, as discussed below.
II. Statutory Protection from Online Harassment
No substantial legislative, policy-making, research, or public information effort undertaken by the Turkish government or nongovernmental actors was identified that specifically focuses on the phenomenon of online harassment of journalists. However, the topic appears to be discussed under the more general matter of the harassment, intimidation, and prosecution of journalists, which appears to be an area of widespread contention and controversy among social and political groups in Turkey, and occupies a prominent place in public debate, attracting the attention of many international commentators.
Under Turkish law, there are no protections in place specifically for journalists; rather, it appears that journalists may seek protection from online harassment under generally applicable laws. For example, internet communication aimed at harassing journalists appears to be potentially covered by several offenses provided in the Turkish Penal Code (TPC). Additionally, there exists a (controversial) procedure under the internet-specific Law No. 5651 that may be used by victims to have offending content blocked. Finally, journalists who are harassed online may also seek civil relief against attacks on their personal rights, as more fully explained below.
A. Criminal Offenses
The following three criminal offenses in Turkish criminal law may be directly relevant to harassment of journalists on the internet:
- Article 125 TPC (“‘insult”)
- Article 106 TPC (“threat”)
- Article 105 TPC (“sexual harassment”)
While the first two offenses do not include a typology specific to expressions made on the internet, the use of electronic communication media has been specifically proscribed as an aggravated type of the offense.
The offense of insulting someone has been pointed out as one of the most widespread offenses committed via expressions made via social media. Article 125 TPC, titled “insult,” states as follows:
(1) Any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honour, dignity or prestige, or attacks someone’s honour, dignity or prestige by swearing, shall be sentenced to a penalty of imprisonment for a term of three months to two years or a judicial fine. To be culpable for an insult made in the absence of the victim, the act should be committed in the presence of at least three further people.
(2) Where the act is committed by means of an oral, written or visual medium message, addressing the victim, the penalty stated in the above paragraph shall be imposed.
(3) Where the insult is committed:
. . .
b) because of declaring, altering or disseminating, his religious, political,
social or philosophical beliefs, thoughts, or convictions, or practising in accordance with the requirements and prohibitions of a religion he belongs to;
. . .
the penalty to be imposed shall not be less than one year.
(4) . . . Where the insult is committed in public, the penalty to be imposed shall be increased by one sixth.
(5) . . . .
It appears that insulting messages transmitted or broadcast over the internet would fall under this offense by way of article 125(2). Postings made on social media platforms are likely to fall under the aggravated typology of the offense provided in article 125(4). The second sentence of article 125(1) has been interpreted by some commentators to require three “followers” for an expression written on a social media profile’s page to constitute the offense. Article 125(3) introduces an aggravated type of the offense, raising the minimum sentence to one year of imprisonment or an equivalent judicial fine.
Another offense that applies to an expression published online and relevant to the case of online harassment of journalists is the offense of “threat,” found in article 106 of the TPC, which states as follows:
(1) Any person who threatens another individual by stating that he will attack the individual’s, or his relative’s, life or physical or sexual immunity shall be subject to a penalty of imprisonment for a term of six months to two years. Where the threat relates to causing extensive loss of economic assets or other related harms, there shall be a penalty of imprisonment for a term of up to six months or a judicial fine, upon the complaint of the victim.
(2) Where the threat is carried out:
. . .
b) while concealing his identity or with an unsigned letter or by using a particular symbol;
. . .
the offender shall be sentenced to a penalty of imprisonment for a term of two to five years.
While it is appears likely that threatening communications sent from an anonymous or faked user profile could fall under the aggravated offense provided in article 106(2)(b) (“concealing his identity”), this point is not clear.
The offense of sexual harassment may be relevant in cases where journalists are targeted by use of expression or content of a sexual nature. However, it has been argued that “sexual” expressions that aim to injure the honor and dignity of a person rather than to violate the sexual immunity of the victim should be assessed under the “insult” offense provided under article 125 TPC. The same could be argued for the offense of “threat” under article 106(1), especially given that the definition of the offense includes an expressed intention to attack sexual immunity. Nevertheless, it might be difficult to draw a clear line between motives. Article 105 TPC, titled “sexual harassment,” states as follows:
(1) If a person is subject to sexual harassment by another person, the person performing such act is sentenced to a term of imprisonment from three months to two years or to a judicial fine . . . .
(2) . . . If the act of offence is committed:
. . .
d) by using the advantage provided by mail or electronic communication instruments, [or]
e) by the act of exposing,
the punishment to be imposed according to the above paragraph is increased by one half. If the victim was obliged to quit his/her job or leave his/her school or family for this reason, the punishment to be imposed cannot be less than one year.
Article 105(2)(d) was specifically added to the description of the offense by an amending law in 2014 as an aggravated type of the offense to counter the fact that anonymous messaging and the communication of sexual content has become much easier with the advent of electronic communications, in particular social media.
B. The Blocking Procedures of Law No. 5651
In 2007 Law No. 5651 “on regulation of publications on the internet and combating crimes committed by means of such publication” was passed. As amended in 2014 and 2015, the Law includes four separate procedures for the blocking of access to content placed on the internet, provided under articles 8, 8/A, 9, and 9/A of the Law.
The access-blocking procedures of Law No. 5651 have been used as a basis by Turkish authorities to block access to hundreds of thousands of websites and domain names, sometimes including the wholesale blocking of platforms such as Twitter.com, YouTube.com, and Wikipedia.org¾a practice that has faced widespread condemnation from domestic and international observers, including inter alia, the Organization for Security and Co-operation in Europe (OSCE) and Venice Commission. Moreover, the CCT has found numerous times that the blocking practices of the Information Technologies and Communications Authority (Bilgi Teknolojileri ve İletişim Kurumu, BTK) and its predecessor the Telecommunication and Communication Presidency (Telekomünikasyon İletişim Başkanlığı, TIB) under Law No. 5641 are in violation of constitutional protections.
Nevertheless, in the context of online harassment of journalists, article 9 of Law No. 5651 provides a procedure that may provide effective relief. According to the article 9 procedure, a natural or legal person who claims that his or her “personal rights” were violated by content published on the internet may give notice to the content or hosting provider requesting that the content be removed. The requester may also (without first giving notice to the content or hosting provider) directly petition the judge of the peace to block access to the content in question. Upon receiving the request, the judge of the peace decides within twenty-four hours and without holding a hearing whether to block access to the content. If the request to block access is granted, the judge will only order the blocking of access to the offending content, not to the whole website, but may also order the blocking of access to the whole website if it is not possible to block specific content. The blocking measure is of indefinite duration. The decision of the judge of the peace may be reviewed by another judge of the peace upon objection; however, the decision cannot be appealed to the regional court or to the Court of Cassation. Only an individual application before the Constitutional Court is available as a remedy against a refusal of the objection made to the authorized judge of the peace.
The article 9 procedure has been severely criticized by the Council of Europe’s Venice Commission on several grounds, of which the most notable are as follows:
- the procedure is not connected to any civil or criminal court process that was initiated with regard to the personal rights violation underlying the blocking of content request where a court closer to the facts of the case could assess the suitability of the measure;
- the procedure does not allow the judge of the peace to seek a more suitable measure (such as requiring the publisher to publish the complainant’s response) that would be proportional to the potential damage sustained by the complainant and would not exceed what is strictly necessary for the protection of the complainant’s rights;
- the procedure does not require notification of parties effected by the blocking; and
- an appeal to higher courts is not allowed, causing a lack of guiding jurisprudence, which in the Turkish system is (according to the Venice Commission) very important for the implementation of human rights standards in the lower courts.
The jurisprudence of the CCT appears to be wary of the practice of lower courts in relation to blocking orders issued under Law No. 5651. Indeed, the CCT has attributed special importance to social media and expressions made on social media, noting as follows:
The internet has an important instrumental value in enabling the enjoyment of fundamental rights and freedoms in modern democracies. Social media, which the internet has made possible, is indispensable for individuals for the expression of knowledge and thoughts, and their dissemination and mutual sharing with others. For this reason, it is clear that the state and the administration must be very careful in its actions and regulations concerning the internet and social media, which have become one of the most effective and prevalent methods of expression of thought in our time.
The CCT, in its judgment in the Ali Kıdık case (2017) has set guidelines for the application of the article 9 procedure. The Court, pointing to the nonadversarial and limited character of the assessment made by the judge of the peace upon a request for blocking under article 9, found that the procedure must be considered as an exceptional measure and interpreted to allow blocking only in cases where the violation is so conspicuous that the court can determine prima facie that the offending content is violating personal rights, without needing to collect evidence or hear the other party. Nevertheless, a report by the Freedom of Expression Association stated that
“subsequent to the Ali Kıdık judgment, none of the blocking orders issued in 2018, by criminal judge-ships of peace has referred to the prima facie principle nor applied Ali Kıdık in their assessment and they systematically ignore this principle despite the principle being adopted in 10 Constitutional Court judgments.
C. Civil Relief
Under articles 24 and 25 of the Turkish Civil Code (TCC) a civil action can be brought against violations of personal rights:
1. Basic principle
ARTICLE 24-The person subject to assault on his/her personal rights may claim protection from the judge against the individuals who made the assault.
Each assault against personal rights is considered contrary to the laws unless the assent of the person whose personal right is damaged is based on any one of the reasons related to private or public interest and use of authorisation conferred upon by the laws.
ARTICLE 25-The claimant may demand from the judge to take an action for prevention of assault, elimination of such threat and determination of unlawful consequences of the assault even though it is discontinued.
The CCT, while explaining the exceptional nature of the blocking procedure of Law No. 5651 in its Ali Kıdık judgment, pointed at these general rules of the Civil Code and the actions to prevent or end conduct in violation of a personal right that can be brought under these rules as a primary method to obtain relief (besides any criminal process) from online attacks made against the fame and honor of complainants. The civil court before which an action under article 25 TCC is brought may issue an injunction against the publication of the offending content if the court finds that inconvenience or serious damage may occur in the case of delay, in accordance with article 389 of the Code of Civil Procedure.
Foreign Law Specialist
 Ulaş Karan, Ifade Özgürlügü, Anayasa Mahkemesine Bireysel Basvuru El Kitaplari Serisi – 2 at 8 (Council of Europe, 2018). Turkey ratified the European Convention of Human Rights on May 18, 1954.
 Id. at 10.
 In developing this doctrine, the CCT appears to be generally following the ECtHR’s jurisprudence in Axel Springer AG/Germany - 39954/08  ECHR 227 (7 Feb. 2012), and Von Hannover v. Germany (No. 2) 40660/08  ECHR 228 (7 Feb. 2012). See, e.g., CCT, Ali Kıdık, B. No. 2014/5552 (Judgment of Oct. 26, 2017), https://perma.cc/MD6J-KYNA.
 Ali Kıdık, § 26 (citing Von Hannover v. Germany (No. 2).
 Karan, supra note 2, at 40.
 Yayıncılar Birliği’nden yazarlar ve gazetecilere yönelik saldırılara tepki: İfade özgürlüğü tehdit altında, BirGün (May 28, 2019), https://perma.cc/5ETF-SU8Z; Mehveş Evin, Dışarıdaki gazeteciler anlatıyor: Baskı, tehdit ve işsizlik, Journo.com.tr (Feb. 10, 2017), https://perma.cc/U5CF-CCSP; see Reporters Without Borders 2019 Press Freedom Index, showing Turkey in 157th place, https://perma.cc/C2BG-9RDC; Council of Europe’s Platform to Promote the Protection of Journalism and Safety of Journalists, reporting 110 journalists in detention in Turkey, https://perma.cc/3WYK-ULLQ; Press Release, OSCE, OSCE Media Freedom Representative [Harlem Désir] Strongly Condemns Shooting of Journalist in Turkey, Calls for Thorough Investigation (Aug. 31, 2019), https://perma.cc/SJ4A-EZUE.
 Turkish Penal Code (TPC), Law No. 5237 (published Oct. 12, 2004, relevant provisions effective June 1, 2005), https://perma.cc/2JZN-7NHR. All translations of the TPC provisions provided herein are quoted from the English translation published by the Venice Commission, CDL-REF(2016)011, https://perma.cc/2JZN-7NHR.
 Metin Turan, Bilisim Hukuku 256 (2016).
 Ayfer Akdemir Çalışır & Kurtuluş Tayanç Çalısır, Teoride ve Pratikte Hakaret Suçları 117 (2013).
 This provision has been pointed out as an example of anti-hate-crime legislation in Turkish law. Turkish law does not have a general framework against hate crimes but the TPC includes the specific targeting of victims based on certain attributes as an aggravating circumstance in some offenses, including those described in article 125. See Timur Demirbaş, Nefret Söylemi ve Nefret Suçları, 19 D.E.U. Hukuk Fakultesi Dergisi 2693, 2700 (2017), https://perma.cc/B3WA-99FM.
 Turan, supra note 14, at 258.
 Eylem Baş, Türk Hukukunda Cinsel Taciz Suçu, 65 Ankara Hukuk Fak. Dergisi 1135, 1158 (2016).
 Turan, supra note 14, at 259.
 Law on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication, Law No. 5651 (published and effective May 23, 2007; art. 8 entered into force on Nov. 23, 2007, per art. 13 of the Law), https://perma.cc/UAD4-CH4J.
 According to a 2019 report published by the Freedom of Expression Association (Turkey), 229,671 websites and domain names were blocked in the period between 2007 and 2018 under the procedures of Law 5651. Yaman Akdeniz & Ozan Güven, Engelli Web 2018 at 37 (2019) (in English), https://perma.cc/9VDS-QDUY.
 European Commission for Democracy through Law (Venice Commission), Opinion on Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication (“The Internet Law”), adopted by the Venice Commission at its 107th Plenary Session, Opinion No. 805/2015 CDL-AD(2016)011 (June 15, 2016), https://perma.cc/XG4P-8RLG.
 See, e.g., Yaman Akdeniz ve diğerleri, B. No. 2014/3986 (Judgment of Apr. 2, 2014), https://perma.cc/FW33-G9J7; YouTube LLC Corporation Service Company ve diğerleri,B. No. 2014/4705 (Judgment [GC] of May 29, 2014), https://perma.cc/K4J5-PPR8; Medya Gündem Dijital Yayıncılık Ticaret A. Ş., B. No. 2013/2623 (Judgment [GC] of Nov. 11, 2015), https://perma.cc/6TSD-LFCR; and most recently, Birgün İletişim ve Yayıncılık Ticaret A. Ş., B. No. 2015/18936 (Judgment [GC] of May 22, 2019), https://perma.cc/K33C-5CAG.
 Law no. 5651 art. 9(1).
 Id. art. 9(3).
 Id. art. 9(4).
 Venice Commission, supra note 24, § 50.
 Yaman Akdeniz ve diğerleri, supra note 25, § 39 (author’s translation).
 Ali Kıdık, supra note 5, §§ 62-63. Notably, Justice Serdar Özgüldür in his dissenting opinion argued that the process before the judgeship of the peace in the article 9 procedure was not as disadvantageous to the parties effected by the blocking decision as they could (and should, according to Özgüldür) seek to establish the legality of the content via obtaining a declaratory judgment or through an actio negatoria under civil law. Id.at 20.
 Akdeniz & Güven, supra note 23, at 38.
 Ali Kıdık, supra note 5, § 64.
Last Updated: 12/30/2020