CASE OF CENGİZ AND OTHERS v. TURKEY

SECOND SECTION

CASE OF CENGİZ AND OTHERS v. TURKEY

(Applications nos. 48226/10 and 14027/11)

This version was rectified in accordance with Rule 81 of the Rules of Court on 10 May 2011

JUDGMENT

STRASBOURG

1 December 2015

FINAL

01/03/2016

This judgment has become final under Article 44 § 2 of the Convention final but it may be subject to editorial revision.

In the case of Cengiz and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Paul Lemmens, President,
Işıl Karakaş,
Nebojša Vučinić,
Ksenija Turković,
Robert Spano,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 20 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 48226/10 and 14027/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Serkan Cengiz, Mr Yaman Akdeniz and Mr Kerem Altıparmak (respectively “the first applicant”, “the second applicant” and “the third applicant”), on 20 July 2010 (the first applicant) and 27 December 2010 (the other two applicants).

2. The second and third applicants were represented before the Court by Ms A. Altıparmak, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. Relying on Article 10 of the Convention, the applicants complained in particular of a measure that had deprived them of all access to YouTube. In addition, relying on Article 6 of the Convention, the first applicant submitted that he had not had an effective judicial remedy enabling him to have the measure in question reviewed by a court.

4. On 16 April 2014 notice of the applications was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. Mr Cengiz was born in 1974 and lives in İzmir. He is a lecturer at the Law Faculty of İzmir University and is an expert and legal practitioner in the field of freedom of expression.

Mr Akdeniz and Mr Altıparmak were born in 1968 and 1973 respectively. Mr Akdeniz is a professor of law at the Law Faculty of Bilgi University. Mr Altıparmak is an assistant professor of law at the Political Science Faculty of Ankara University and director of the university’s Human Rights Centre.

A. Blocking order in respect of YouTube

6. YouTube () is the leading video-hosting website on which users can upload, view and share videos. Most videos on the site or on YouTube channels can be viewed by any Internet users, but only users with a YouTube account may upload video files. The platform is available in more than seventy-six countries. Over one billion users visit the site each month, viewing more than six billion hours of videos.

7. On 5 May 2008, under section 8(1)(b), (2), (3) and (9) of Law no. 5651 on regulating Internet publications and combating Internet offences (“Law no. 5651”), the Ankara Criminal Court of First Instance made an order for the blocking of access to the website and the IP addresses 208.65.153.238-208.65.153.251 providing access to the website. The court held, among other things, that the content of ten pages on the website (ten video files) infringed Law no. 5816 prohibiting insults to the memory of Atatürk.

8. On 21 May 2010 the first applicant lodged an objection against the blocking order of 5 May 2008. Relying on his right to freedom to receive and impart information and ideas, he sought to have the order set aside.

9. On 31 May 2010 the second and third applicants, as YouTube users, also lodged an objection against the blocking order of 5 May 2008. They sought to have the order set aside, arguing that there was a public interest in having access to YouTube and that the blocking of such access seriously impaired the very essence of their right to freedom to receive information and ideas. They also submitted that six of the ten pages to which the order of 5 May 2008 related had already been deleted and that the other four were no longer accessible from inside Turkey. This meant, in their submission, that the blocking order had become devoid of all purpose and constituted a disproportionate restriction on the rights of Internet users to receive and impart information and ideas.

10. On 9 June 2010 the Ankara Criminal Court of First Instance dismissed the applicants’ objection, holding in particular that the blocking order complied with the requirements of the legislation. Addressing the inaccessibility of the video files from inside Turkey, it stated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they had not been parties to the investigation procedure, the applicants did not have locus standi to challenge such orders. Lastly, the court noted that an objection against the same blocking order had already been dismissed on 4 June 2008.

11. On 2 July 2010 the Ankara Criminal Court upheld the decision of 9 June 2010 of the Ankara Criminal Court of First Instance, holding that it had complied with the procedural rules and fell within the court’s discretion.

B. Subsequent decisions

12.  On 17 June 2010 the Ankara Criminal Court of First Instance adopted a further decision concerning YouTube, ordering the blocking of access to the website and forty-four other IP addresses belonging to the site.

13. On 23 June 2010 the second and third applicants lodged an objection against the additional blocking order of 17 June 2010.

14. On 1 July 2010 the Ankara Criminal Court of First Instance dismissed the objection lodged by those two applicants and by representatives of YouTube and the Internet Technology Association. Addressing the inaccessibility of the video files from inside Turkey, it reiterated that while access to the files had indeed been blocked by YouTube within Turkey, the videos in question had nevertheless not been removed from the website’s database and thus remained accessible to Internet users worldwide. It also held that as they were not parties to the case, the applicants did not have locus standi to challenge such orders. It added that, given that the website in question had continued to infringe the law by remaining active, the blocking order was compatible with the requirements of the legislation. Lastly, it rejected the argument that the provision applied in the present case was unconstitutional.

15. In the judgment of 2 July 2010 referred to above (see paragraph 11), the Ankara Criminal Court also upheld the decision of 1 July 2010 of the Ankara Criminal Court of First Instance.

C. Information submitted by the parties

16. The Government indicated that in the period before and after the order blocking access to YouTube, between 23 November 2007 and 1 July 2009, 1,785 complaints had been made to the Telecommunications and Information Technology Directorate (“the TİB”) to the effect that YouTube was hosting content that was illegal under Law no. 5651, in particular concerning sexual abuse of minors and insults to the memory of Atatürk.

17. The Government also stated that prior to the order of 5 May 2008, the domestic courts had already made thirty-four orders blocking access to YouTube on account of illegal content hosted by the site. Following the orders, the TİB had contacted YouTube’s legal representative in Turkey under the “notice and take down” procedure. The order of 5 May 2008, according to the Government, indicated that there were ten web addresses (URLs) hosting defamatory content about Atatürk. Access to six of the pages had been blocked, but the other four had remained accessible both from within Turkey and abroad. Accordingly, the TİB had notified YouTube of its decision to remove the content in question. However, YouTube had not stopped hosting the offending pages and the TİB had had no other solution than to block access to the entire YouTube website, as Turkey had not set up a URL filtering system.

18. The applicants stated that following the order of 5 May 2008, access to YouTube had been blocked in Turkey by the TİB until 30 October 2010. On that date, the blocking order in respect of YouTube had been lifted by the competent public prosecutor’s office following a request from a company claiming to own the copyright to the videos. However, from 1 November 2010 YouTube had decided to restore the videos, finding that they did not infringe copyright. The second and third applicants also pointed out that they had discovered that in January 2015, four video files (nos. 1, 2, 7 and 8) out of the ten concerned by the order of 5 May 2008 were still accessible on YouTube. They noted that among those files, videos nos. 2 and 7 did not include any content that could be construed as insulting the memory of Atatürk and thus fell outside the scope of section 8 of Law no. 5651. In particular, video no. 2 was fourteen seconds long and showed a burning Turkish flag. Video no. 7 was forty-nine seconds long and showed a former chief of staff of the Turkish armed forces. Only videos nos. 1 and 8 might have been regarded as insulting, but there had been no proceedings to establish that their content was illegal.

II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE

A. Internet law

19. For a summary of the relevant domestic and international law and practice at the material time, the Court would refer to Ahmet Yıldırım v. Turkey (no. 3111/10, §§ 15-37, ECHR 2012).

20. Law no. 5651 of 4 May 2007 on regulating Internet publications and combating Internet offences provided as follows, in so far as relevant, at the material time:

Section 8 – Blocking orders and implementation thereof

“(1) A blocking order (erişimin engellenmesi) shall be issued in respect of Internet publications where there are sufficient grounds to suspect that their content is such as to amount to one of the following offences:

(a) Offences under the Criminal Code ...

(1) incitement to suicide (Article 84);

(2) sexual abuse of minors (Article 103 § 1);

(3) facilitating the use of narcotic drugs (Article 190);

(4) supplying products dangerous to health (Article 194);

(5) obscenity (Article 226);

(6) prostitution (Article 227);

(7) hosting gambling activities (Article 228);

(b) offences against the memory of Atatürk under Law no. 5816 of 25 July 1951 ...

(2) The blocking order shall be issued by a judge if the case is at the investigation stage or by the court if a prosecution has been brought. During the investigation, the blocking of access may be ordered by the public prosecutor in cases where a delay in acting could have harmful effects. The order must then be submitted to the judge for approval within twenty-four hours. The judge must give a decision within a further twenty-four hours. If he or she does not approve the blocking of access, the measure shall be lifted by the prosecutor forthwith. Blocking orders issued as a preventive measure may be appealed against in accordance with the provisions of the Code of Criminal Procedure (Law no. 5271).

(3) A copy of the blocking order issued by the judge, court or public prosecutor shall be sent to the [Telecommunications and Information Technology] Directorate for execution.

(4) Where the content provider or the hosting service provider is abroad ... the blocking order shall be issued by the Directorate of its own motion. It shall then be notified to the access provider with a request for execution.

(5) Blocking orders shall be implemented immediately or at the latest twenty-four hours after notification.

...

(7) If the criminal investigation ends in a decision to discontinue the proceedings, the blocking order shall automatically cease to apply ...

(8) Where the trial ends in an acquittal, the blocking order shall automatically cease to apply ...

(9) If the illegal content is removed, the blocking order shall be lifted ...”

21. The Government stated that two significant amendments had recently been made to Law no. 5651. The prison sentences provided for by the Law had been replaced by fines and the effective protection of personal rights had been increased; also, blocking orders were now limited in time.

22. In addition, the Court observes that[1] Law no. 6639, enacted on 27 March 2015, inserted a new section 8A into Law no. 5651. The new provision authorises the TİB, further to a request to that effect from the Prime Minister or a ministry, to order the deletion of the content of a web page and/or the blocking of access to such content. It also explicitly states for the first time that the blocking of access to an entire website is permitted. Subsection (3) of section 8A reads:

“Blocking orders issued in accordance with this provision shall be aimed at blocking access to the content of the chapter or part of the publication (URL or other) constituting the offence. Where it is not technically possible to block access to the offending content or where the blocking of access to the offending content does not prevent the offence, access to the entire website may be blocked.”

23. The Government pointed out that URL filtering technology for foreign-based websites was not available in Turkey and that the relevant legislation in this area was based on the “notice and take down” procedure, which tended to avoid the inconvenience of blocking access to the entire website. Thus, 60,000 examples of illegal content on foreign-based websites had been removed to date. To that end, an information reporting centre had been set up; its duties included receiving complaints from individuals about Internet content. Many individual complaints had been made to the centre by this means about videos shared on YouTube.

B. Law no. 5816

24. The relevant provisions of Law no. 5816 of 25 July 1951 prohibiting insults against the memory of Atatürk read as follows:

Section 1

“Anyone who specifically insults or curses the memory of Atatürk shall be liable to imprisonment for a term of between one and three years.

Anyone who breaks, destroys, damages or dirties a statue or image of Atatürk or his tomb shall be liable to imprisonment for a term of between one and five years.

Anyone who incites another to commit any of the above-mentioned offences shall be punished in the same way as the principal offender.”

Section 2

“The punishment shall be increased by half where the offence provided for in section [1] above has been committed by a group of two or more persons, or overtly or via the media or in a public place. Where violence is used in the commission or attempted commission of the offences provided for in the second subsection of section 1 above, the punishment shall be doubled.”

C. Constitutional case-law

1. The “” judgment

25. In March 2014, following several decisions in which the Turkish courts had found that the website (a microblogging site where users can post short messages online free of charge via instant messaging or SMS) was hosting content that was damaging to the claimants’ private life and reputation, the TİB ordered the blocking of access to the site. In a judgment of 25 March 2014 the Ankara Administrative Court stayed the implementation of the TİB’s order.

In the meantime, on 24 and 25 March 2014, three individuals, including the second and third applicants, had applied to the Constitutional Court to challenge the blocking order.

In a judgment of 2 April 2014 (no. 2014/3986) the Constitutional Court held that the TİB’s decision to block access to interfered with the right to freedom to receive and impart information and ideas. It noted, in particular, that delaying the posting of information or opinions shared via this medium, even for a short time, risked making the site devoid of all topical value and interest and that as a result the applicants, who were active users of the site, had an interest in having the blocking order lifted promptly. Referring to the Court’s judgment in Ahmet Yıldırım (cited above), it also held that the measure in issue had had no legal basis.

2. The “YouTube” judgment

26. On 27 March 2014 the TİB issued an order blocking access to YouTube, particularly in the light of a judgment of the Gölbaşı Criminal Court of First Instance. In a judgment of 2 May 2014 the Ankara Administrative Court stayed the implementation of the TİB’s order. Following the non-enforcement of that judgment, the YouTube company, the second and third applicants and six other individuals applied to the Constitutional Court. In a judgment of 29 May 2014 the court set aside the blocking order. Before addressing the merits of the case, it determined whether the applicants had the status of victims and held as follows:

“27. ... It appears from the file that ... Yaman Akdeniz, Kerem Altıparmak and M.F. taught at different universities. These applicants explained that they carried out research in the field of human rights and shared the research via their YouTube accounts. They also stated that through the website, they were able to access written and visual material from the United Nations and the Council of Europe ... The applicant E.E., for his part, explained that he had a [YouTube] account, that he regularly followed users who shared files, as well as the activities of non-governmental organisations and professional bodies, and that he also wrote critical comments about the shared content ...

28. In the light of those explanations, it can be concluded that the applicants were direct victims of the administrative decision ordering the blocking of access to the entire website ...”

As to the merits of the case, with reference to the Ahmet Yıldırım judgment (cited above), the Constitutional Court found that the measure in issue had had no legal basis, particularly in the light of Law no. 5651, which did not authorise the wholesale blocking of an Internet site. It held:

“52. In modern democracies, the Internet has acquired significant importance in terms of the exercise of fundamental rights and freedoms, especially the freedom of expression. Social media constitute a transparent platform ... affording individuals the opportunity to participate in creating, publishing and interpreting media content. Social media platforms are thus indispensable tools for the exercise of the right to freedom to express, share and impart information and ideas. Accordingly, the State and its administrative authorities must display considerable sensitivity not only when regulating this area but also in their practice, since these platforms have become one of the most effective and widespread means of both imparting ideas and receiving information.”

D. The United Nations Human Rights Committee

27. In its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (11-29 July 2011), the United Nations Human Rights Committee stated as follows:

“43. Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3 [of Article 19 of the International Covenant on Civil and Political Rights, governing the restrictions that may be imposed on the exercise of the right to freedom of expression]. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”

THE LAW

I. JOINDER OF THE APPLICATIONS

28. The Court decides, in accordance with Rule 42 § 1 of the Rules of Court, to join the applications in view of their similarity as regards the facts and the legal issues they raise, and to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

29. The applicants complained that the measure taken by the domestic courts had prevented them from having access to YouTube. They submitted that the measure amounted to an infringement of their right to freedom to receive and impart information and ideas, guaranteed by Article 10 of the Convention. The relevant parts of that Article provide:

“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. ...

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.”

30. The Government contested the applicants’ argument.

A. Admissibility

31. The Government contended that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention. Referring in particular to Tanrıkulu and Others v. Turkey ((dec.), nos. 40150/98, 40153/98 and 40160/98, 6 November 2001) and Akdeniz v. Turkey ((dec.), no. 20877/10, 11 March 2014), they argued that the applicants could not be said to have been directly affected by the facts allegedly constituting the interference.

32. The Government further noted that the applicants had lodged their applications with the Court two years after the order blocking access to YouTube. They submitted that if the applicants considered themselves to be the victims of the measures in question, they should not have waited such a long time to complain about them.

33. The applicants disputed that argument.

34. The Court considers that the Government’s preliminary objection that the applicants lack victim status raises issues that are closely linked to the examination of whether there has been an interference with the applicants’ exercise of their right to freedom to receive and impart information and ideas, and hence to the merits of the complaint under Article 10 of the Convention. It therefore decides to join this objection to the merits (see, to similar effect, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 100, 14 September 2010, and Altuğ Taner Akçam v. Turkey, no. 27520/07, § 51, 25 October 2011).

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It therefore declares it admissible.

B. Merits

1. The parties’ submissions

(a)  The applicants

36. The three applicants submitted that the order blocking access to YouTube amounted to an infringement of their freedom to receive and impart information and ideas. Relying on Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) and two judgments of the Constitutional Court (see paragraphs 25-26 above), they also asserted that Law no. 5651 did not permit the wholesale blocking of access to a website. Accordingly, the impugned interference could not be said to have been “prescribed by law”. They further contended that the consequences that the blocking order had entailed for them, by making it impossible to access numerous YouTube videos that were unrelated to the illegal content forming the basis of the blocking order in respect of the site, had been disproportionate to the aims pursued. They argued in addition that the proceedings leading to the blocking of YouTube could not be regarded as fair and impartial.

37. The first applicant submitted, among other things, that he was a lecturer in law and an expert and legal practitioner in the field of freedom of expression. He explained that international organisations uploaded a large amount of visual material on YouTube and that he regularly used such material in his activities. As an active user with a YouTube account, he enjoyed access to many different information sources that published a wide range of content on the site, such as documentation, analyses and entertainment. As a result of the wholesale blocking of the site, he had been unable to access his YouTube account for more than three years.

38. The second and third applicants, emphasising the importance of the Internet, which had become one of the main means by which individuals could exercise their right to freedom to receive and impart information and ideas, contended that they had been directly affected by the measure in issue. They explained in that connection that YouTube not only disseminated artistic and musical content, but was also a large-scale and very popular platform for political speech and political and social activities. In particular, political content that was ignored by the traditional media or banned by repressive governments was often shared via YouTube, fostering “citizen journalism” on an unforeseen scale. From that perspective, YouTube was a unique platform on account of its characteristics, its accessibility and above all its potential impact, and there were no equivalents that could replace it.

39. Furthermore, the second and third applicants submitted that the present case differed from Akdeniz (cited above), which had concerned the blocking of sites hosting musical content on the grounds that the sites did not comply with copyright legislation. The Court had, moreover, affirmed that the Contracting States’ margin of appreciation should be reduced where what was at stake was not a given individual’s purely “commercial” expression, but his or her participation in a debate affecting the general interest (the applicants cited, mutatis mutandis, Ashby Donald and Others v. France, no. 36769/08, § 39, 10 January 2013). The applicants added that, as had been the case in Khurshid Mustafa and Tarzibachi v. Sweden (no. 23883/06, § 44, 16 December 2008), the right at stake had been of particular importance to them.

40. More specifically, the second applicant explained that as a law professor specialising in the field of freedom of expression, he uploaded a significant amount of political material about Internet law onto YouTube. The third applicant added that he was likewise a law professor and director of the Human Rights Centre at Ankara University and also accessed a large number of videos via YouTube. Several conferences organised by the centre had been made available through the site. In addition, files containing speeches or recordings produced by the centre or by himself had been uploaded by others. The two applicants explained that, to sum up, they used YouTube not only to receive information about academic topics or other matters of general interest, but also to impart information via their own YouTube accounts. Accordingly, both the freedom to receive information and the freedom to impart it were at stake.

41. The second and third applicants also objected to the manner in which the domestic courts had ordered the blocking of access to YouTube and argued that the procedure had not afforded any safeguards to ensure that a blocking order in respect of a specific site was not used as a means of blocking access in general. They emphasised that in practice, the blocking of access to a website was not envisaged solely as a last resort, given that access to more than 60,000 websites had already been blocked, including 21,000 in 2014. During that same year, access to and had been blocked illegally, without any consideration being given to less severe measures. In both cases, the Constitutional Court had held that the blocking orders breached Article 26 of the Constitution (guaranteeing the right to freedom to receive and impart information and ideas), finding that they entailed serious interference with the exercise of that right.

(b)  The Government

42. The Government contested the applicants’ arguments. They reiterated their argument that the applicants’ complaint was incompatible ratione materiae with the provisions of the Convention. In their submission, the applicants could not be said to have been directly affected by the facts allegedly constituting the interference. In any event, they had not substantiated their allegation of a violation of Article 10 of the Convention.

43. If, however, the Court were to find that there had been an interference for the purposes of Article 10 of the Convention, the Government maintained that the interference had been prescribed by law and had pursued the legitimate aims set out in paragraph 2 of that Article. As to whether the measure in question had been “necessary” within the meaning of Article 10, the Government submitted that a fair balance had been struck between the competing interests at stake. Furthermore, the proceedings had been fair at all levels, and both of the courts concerned had delivered decisions containing comprehensive and detailed reasons. Accordingly, and having regard to the margin of appreciation afforded to the authorities, the alleged interference had been proportionate to the legitimate aim pursued and “necessary in a democratic society”.

44. The Government stated more specifically that the Internet operators mentioned in section 2 of Law no. 5651 had been defined in conformity with European Union standards and that the duties of those operators and the sanctions applicable to them were explicitly regulated by law. In addressing the need to introduce the relevant legal instruments, Turkey had achieved significant progress in terms of the setting of limits on fundamental rights and freedoms by law in accordance with national and international standards. To that end, the blocking of access to a website had been envisaged not as a first resort but as a last resort in curbing the dissemination of harmful content.

45. The Government added that Law no. 5651 listed the types of offences that could give rise to a blocking order under the “notice and take down” procedure. This procedure was aimed in particular at avoiding the inconvenience of blocking access to an entire website. Furthermore, domestic and foreign-based websites hosting harmful content had been eliminated by means of this procedure.

46. The Government lastly noted that significant amendments had recently been made to Law no. 5651. However, URL filtering technology for foreign-based websites was not available in Turkey.

2. The Court’s assessment

(a)  Whether there was an interference

47. The Court notes that in a decision adopted on 5 May 2008, the Ankara Criminal Court of First Instance ordered the blocking of access to YouTube under section 8(1)(b), (2), (3) and (9) of Law no. 5651 on the grounds that the content of ten video files available on the website in question had infringed Law no. 5816 prohibiting insults to the memory of Atatürk. The first applicant lodged an objection against the blocking order on 21 May 2010, seeking to have it set aside, and the second and third applicants did likewise on 31 May 2010. In their objections they relied on the protection of their right to freedom to receive and impart information and ideas.

48. On 9 June 2010 the Ankara Criminal Court of First Instance, finding that the applicants had not been parties to the case and thus did not have locus standi to challenge such orders, dismissed their objection. In so doing, it noted, among other things, that the blocking order complied with the requirements of the relevant legislation. It also adopted a further decision on 17 June 2010. Attempts by two of the applicants to challenge that decision were to no avail.

49. The Court reiterates at the outset that the Convention does not allow an actio popularis but requires as a condition for the exercise of the right of individual petition that the applicant must be able to claim on arguable grounds that he himself has been a direct or indirect victim of a violation of the Convention resulting from an act or omission which can be attributed to a Contracting State. In Tanrıkulu and Others (cited above) it found that readers of a newspaper whose distribution had been prohibited did not have victim status. Similarly, in Akdeniz (cited above, § 24) it held that the mere fact that Mr Akdeniz – like the other users of two music-streaming websites in Turkey – was indirectly affected by a blocking order could not suffice for him to be acknowledged as a “victim” within the meaning of Article 34 of the Convention. In view of those considerations, the answer to the question whether an applicant can claim to be the victim of a measure blocking access to a website will therefore depend on an assessment of the circumstances of each case, in particular the way in which the person concerned uses the website and the potential impact of the measure on him. It is also relevant that the Internet has now become one of the principal means by which individuals exercise their right to freedom to receive and impart information and ideas, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest (see Ahmet Yıldırım, cited above, § 54).

50. In the present case, the Court observes that the applicants lodged their applications with it as active users of YouTube; among other things, they drew attention to the repercussions of the blocking order on their academic work and to the significant features of the website in question. They stated, in particular, that through their YouTube accounts they used the platform not only to access videos relating to their professional sphere, but also in an active manner, for the purpose of uploading and sharing files of that nature. The second and third applicants also pointed out that they had published videos about their academic activities. In that respect, the case more closely resembles that of Mr Yıldırım, who stated that he published his academic work and his views on various topics on his own website (ibid., § 51), than that of Mr Akdeniz (see decision cited above), who was acting as a simple website user.

51. The present case also differs in another respect from that of Akdeniz, where the Court had regard, inter alia, to the fact that the applicant could easily have had access to a whole range of musical works by a variety of means without infringing copyright rules (ibid., § 25). YouTube, however, not only hosts artistic and musical works, but is also a very popular platform for political speeches and political and social activities. The files shared by YouTube contain information that could be of particular interest to anyone (see, mutatis mutandis, Khurshid Mustafa and Tarzibachi, cited above, § 44). Accordingly, the measure in issue blocked access to a website containing specific information of interest to the applicants that is not easily accessible by other means. The website also constitutes an important source of communication for the applicants.

52. Moreover, as to the importance of Internet sites in the exercise of freedom of expression, the Court reiterates that “in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general” (see Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009). User-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression (see Delfi AS v. Estonia [GC], no. 64569/09, § 110, ECHR 2015). In this connection, the Court observes that YouTube is a video-hosting website on which users can upload, view and share videos and is undoubtedly an important means of exercising the freedom to receive and impart information and ideas. In particular, as the applicants rightly noted, political content ignored by the traditional media is often shared via YouTube, thus fostering the emergence of citizen journalism. From that perspective the Court accepts that YouTube is a unique platform on account of its characteristics, its accessibility and above all its potential impact, and that no alternatives were available to the applicants.

53. Furthermore, the Court observes that after the applicants lodged their applications, the Constitutional Court examined whether active users of websites such as and could be regarded as victims. In particular, in the case concerning the administrative decision to block access to YouTube, it granted victim status to certain active users of the site, among them the second and third applicants. In reaching that conclusion, it mainly had regard to the fact that the individuals concerned, who all had a YouTube account, made active use of the site. In the case of the two applicants in question, it also took into consideration the fact that they taught at universities, carried out research in the field of human rights, used the website to access a range of visual material and shared their research via their YouTube accounts (see paragraphs 25-26 above).

The Court endorses the Constitutional Court’s conclusions about these applicants’ victim status. In addition, it observes that the situation of the first applicant, also an active YouTube user, is no different from that of the other two applicants.

54. To sum up, the Court observes that the applicants are essentially complaining of the collateral effects of the measure taken against YouTube in the context of Internet legislation. Their contention is that on account of the features of YouTube, the blocking order deprived them of a significant means of exercising their right to freedom to receive and impart information and ideas.

55. Having regard to the foregoing and to the need for flexible application of the criteria for acknowledging victim status, the Court accepts that in the particular circumstances of the case, the applicants may legitimately claim that the decision to block access to YouTube affected their right to receive and impart information and ideas even though they were not directly targeted by it. It therefore dismisses the Government’s preliminary objection as to victim status.

56. Moreover, the Court reiterates that Article 10 of the Convention guarantees “everyone” the freedom to receive and impart information and ideas and that no distinction is made according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom. Article 10 applies not only to the content of information but also to the means of dissemination, since any restriction imposed on such means necessarily interferes with the right to receive and impart information. Likewise, the Court reaffirms that Article 10 guarantees not only the right to impart information but also the right of the public to receive it (see Ahmet Yıldırım, cited above, § 50).

57. In the present case the evidence before the Court indicates that as a result of a measure ordered by the Criminal Court of First Instance on 5 May 2008, the applicants had no access to YouTube for a lengthy period. As active YouTube users, they can therefore legitimately claim that the measure in question affected their right to receive and impart information and ideas. 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 (ibid., § 53). The measure in question therefore amounted to “interference by public authority” with the exercise of the rights guaranteed by Article 10.

58. The Court reiterates that 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. That is what it will seek to ascertain below.

(b)  Whether the interference was justified

59. The Court reiterates firstly that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned, foreseeable as to its effects and compatible with the rule of law (see, among many other authorities, Dink, cited above, § 114). According to the Court’s settled 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, and Akçam v. Turkey, no. 32964/96, § 87, 30 October 2001).

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

61. The Court observes that in Ahmet Yıldırım (cited above, §§ 61-62) it examined whether the interference had been “prescribed by law” and answered this question in the negative. In particular, it noted that Law no. 5651 did not allow the blocking of access to an entire website on the basis of the content of a single page hosted by it. Under section 8(1) of Law no. 5651, only the blocking of access to a specific publication could be ordered, provided that there were sufficient grounds to suspect that its content was such as to amount to any of the offences specified in the Law. Moreover, the Court’s conclusion in that case was followed by the Constitutional Court in its two decisions adopted after the delivery of the Ahmet Yıldırım judgment (see paragraphs 25-26 above).

62. In that connection the Court found, in particular, that such prior restraints were not incompatible with the Convention as a matter of principle but had to form part of a legal framework ensuring both tight control over the scope of the ban and effective judicial review to prevent any abuses (ibid., § 64). Judicial scrutiny of such a measure, based on the 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 the freedom to receive and impart information and ideas.

63. It should be noted in the present case, however, that when the Ankara Criminal Court of First Instance decided to block all access to YouTube, there was no statutory provision empowering it to do so.

64. Indeed, as is apparent from the Government’s observations and the practice of the Turkish authorities, URL filtering technology for foreign-based websites is not available in Turkey. In practice, therefore, to implement court decisions concerning specific content, an administrative authority – the TİB – decided to block all access to the entire website in question. As the Court has already held in Ahmet Yıldırım (cited above, § 66), the authorities should have taken into consideration, among other aspects, the fact that such a measure, by rendering large quantities of information inaccessible, was bound to substantially restrict the rights of Internet users and to have a significant collateral effect.

65. 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 requirement of lawfulness under the Convention and did not afford the applicants the degree of protection to which they were entitled by the rule of law in a democratic society. Furthermore, the provision in question appears to 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” (ibid., § 67).

66. There has therefore been a violation of Article 10 of the Convention.

67. 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 of the Convention have been met.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

68. Relying on Article 6 of the Convention, Mr Cengiz complained that he had not had an effective remedy enabling him to have the impugned measure reviewed by the courts and to have possible abuse by the authorities censured.

69. In view of its finding of a violation under Article 10 of the Convention (see paragraph 66 above), the Court considers that it has examined the main legal questions raised in the present case. In the light of all the facts of the case, it deems it unnecessary to rule separately on either the admissibility or the merits of the complaint under Article 6 of the Convention (see, to similar effect, Ahmet Yıldırım, cited above, § 72).

IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION

70. In their application form Mr Akdeniz and Mr Altıparmak each claimed 1,000 euros (EUR) in respect of non-pecuniary damage and the same amount in respect of costs and expenses. Mr Cengiz, meanwhile, did not submit any claims under this head, taking the view that the finding of a violation would in itself constitute just satisfaction.

In addition, under Article 46 of the Convention, the applicants asked the Court to indicate to the respondent Government the general measures that could be taken to put an end to the situation complained of.

71. The Government stated that they were opposed to any award being made to the applicants. In the alternative, they contended that the finding of a violation would in itself constitute sufficient just satisfaction.

72. The Court notes that Mr Akdeniz and Mr Altıparmak submitted their claims for just satisfaction in their application form only. Accordingly, they failed to comply with either Rule 60 §§ 2 and 3 of the Rules of Court or paragraph 5 of the Practice Direction on just satisfaction claims, which specifies that the Court will “reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings”. Their claims for just satisfaction must therefore be rejected (see, among other authorities, Anđelković v. Serbia, no. 1401/08, § 33, 9 April 2013).

73. Having regard to the foregoing and to Mr Cengiz’s position in respect of Article 41 of the Convention, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by that applicant.

74. As to the applicants’ claim under Article 46 of the Convention, the Court notes that it has found a violation of the Convention because, inter alia, the domestic court order blocking access to YouTube did not have a legal basis and the legislation, as in force at the material time, did not afford the applicants the degree of protection to which they were entitled by the rule of law in a democratic society (see paragraph 65 above). That conclusion implies that the violation of the applicants’ right stemmed from a structural problem.

75. The Court observes that after the application in the present case was lodged, Law no. 5651 was amended. Under section 8A(3), the blocking of access to an entire website can now be ordered if the various conditions laid down in that provision are satisfied (see paragraph 22 above). The Court considers it useful to specify that[2] these amendments were introduced after the domestic court had ordered the blocking of access to YouTube without any legal basis. In this connection, the Court points out that it is not its task to rule in abstracto on the compatibility with the Convention of the legal provisions in force in Turkey at the material or the present time for blocking access to websites. On the contrary, it must assess in concreto what effect the application of the relevant provisions in the present case had on the applicants’ right to freedom of expression under Article 10 of the Convention. It must therefore determine whether the application of the provisions in question gave rise to a violation of Article 10 in respect of the applicants (see Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II). In the light of the foregoing, the Court does not consider it necessary, in the circumstances of the present case, to consider the applicants’ request for an order under Article 46 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaint under Article 10 of the Convention admissible;

3. Holds that there has been a violation of Article 10 of the Convention;

4. Holds that there is no need to examine separately the admissibility and merits of the complaint under Article 6 of the Convention;

5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Cengiz;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in French, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithPaul Lemmens
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.

P.L.
S.H.N.

CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I voted with the majority in favour of finding a violation of Article 10 of the Convention. However, I would have preferred this conclusion to have been based on different reasoning.

Legal basis for the blocking order

2. After noting that the blocking of access to YouTube constituted an interference with the exercise of the applicants’ right to receive and impart information and ideas, a finding to which I unreservedly subscribe, the majority concluded that the interference had not been “prescribed by law” within the meaning of Article 10 § 2 of the Convention.

I nevertheless have some difficulty in understanding the precise reason that led the majority to reach that conclusion. Was there no legal basis at all? Or did the measure that was ordered exceed the limits of the legal basis (see paragraphs 61 and 63 of the judgment)? Or was the statutory provision on which the measure was based insufficiently precise (see the applicants’ argument as recapitulated in paragraph 60 of the judgment)? Or did this legal basis confer too broad a power on the competent authority (see paragraphs 62 and 65 of the judgment)?

3. My own view is that there was indeed a legal basis for blocking access to websites, namely section 8(1)(b) and (2) of Law no. 5651 of 4 May 2007. Under that provision, a blocking order in respect of Internet publications could be issued by a court. The provision in question served as the foundation for the order made in the present case by the Ankara Criminal Court of First Instance, and thus constituted the basis of the impugned measure in domestic law.[3]

As to whether the measure in issue was compatible with the aforementioned statutory provision, it should be emphasised that it is first and foremost for the national authorities, and notably the courts, to interpret and apply domestic law (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 127, ECHR 2015, and Pentikäinen v. Finland [GC], no. 11882/10, § 85, ECHR 2015). It is now clear from the Constitutional Court’s judgment of 29 May 2014 that the aforementioned provision did not allow the blocking of access to an entire website, but only to specified content on a website (section 8(1), introductory phrase, of the Law). It follows that the interference in issue could not validly have been grounded on the provision that was supposed to have formed its legal basis. That, to my mind, should have been the reason for concluding that the measure was not prescribed by law.

This conclusion should in my view have made it unnecessary for the Court to go on to examine the foreseeability of the law or the protection it afforded against arbitrary interferences with freedom of expression.

Purpose and necessity of the blocking order

4. After concluding that the interference in issue did not satisfy the lawfulness requirement set forth in paragraph 2 of Article 10 of the Convention, the majority considered it unnecessary to determine whether the other requirements of that paragraph had been met (see paragraph 67 of the judgment).

In principle, such an approach is justified. However, in the circumstances of the present case, I feel that this is a missed opportunity.

The statutory provision on which the Court gave its ruling, namely section 8 of Law no. 5651, has in the meantime been supplemented by a provision – section 8A – which now expressly states that access to an entire website can be blocked (see paragraph 22 of the judgment). The judgment therefore addresses a situation which, to the extent that it concerns the legal basis for the impugned measure, largely belongs to the past. That being so, it would in my opinion have been desirable to examine whether, irrespective of the fact that the interference in issue was not prescribed by law, the measure pursued a legitimate aim and whether, particularly on account of its effects, it was proportionate to that aim (for a similar approach, see Kurić and Others v. Slovenia [GC], no. 26828/06, § 350, ECHR 2012 (extracts)).

Admittedly, it is not the Court’s task to rule in abstracto on the new section 8A (see paragraph 75 of the judgment). I nevertheless believe that had it examined, even by way of an obiter dictum, the purpose and necessity of the interference complained of, its judgment could have offered guidance to Turkish citizens and authorities as to the principles that must be observed in the application of both section 8 and the new section 8A of Law no. 5651.

[1] Rectified on 29 March 2016 (French text). The text previously read: “The Government stated in particular that ...”.

[2] Rectified on 29 March 2016 (French text). The following text was deleted: “although the parties provided detailed comments on them in their observations,”.

[3]1. The situation in the present case is not similar to those in the cases that gave rise to the Constitutional Court’s judgments of 2 April 2014 and 29 May 2014 (see paragraphs 25 and 26 of the judgment), in which the Telecommunications and Information Technology Directorate (“the TİB”) had blocked access to an entire website without a court order for such an extensive measure. In addition, in the case of Ahmet Yıldırım v. Turkey (no. 3111/10, ECHR 2012) the court had ordered the wholesale blocking of access to Google Sites further to a request from the TİB. In the present case it was the court itself, on its own initiative, that ordered the blocking of all access to YouTube, and the TİB simply executed that decision.

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