Cengiz and Others v. Turkey

Information Note on the Court’s case-law 191

December 2015

Cengiz and Others v. Turkey - 48226/10 and 14027/11

Judgment 1.12.2015 [Section II]

Article 34

Victim

Wholesale blocking of access to YouTube of which applicants were active users: victim status upheld

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Wholesale blocking of access to YouTube without legal basis: violation

Facts – In May 2008 an Ankara court, finding that the content of ten pages on the YouTube website infringed the prohibition on insulting the memory of Atatürk, imposed a blocking order on the entire website. The applicants, who are active users of the website, appealed against that decision. Their appeal was dismissed on the ground that they were not parties to the investigation procedure and therefore did not have standing to challenge the blocking order.

The legislation on which the court’s decision had been based was amended following the facts of the case in such a way as to enable a blanket blocking order to be made in respect of an entire Internet site and no longer just the content in issue.

Law – Article 10: The applicants had lodged their applications with the Court as active users of YouTube, complaining in particular about the repercussions of the blocking order on their academic work and underscoring the important features of the website in question. They stated, in particular, that via their YouTube accounts they used the platform not only to access videos relating to their professional sphere but also, actively, to download and share these materials. Some of them also pointed out that they published recordings about their academic activities. Furthermore, not only did YouTube publish artistic and musical works, it was also a very popular platform for political speeches and political and social activities. The material published by YouTube included, among other things, information that could be of particular interest for everyone. The blocking order blocked access to a website containing specific information of interest to the applicants that was not easily accessible by other means. The website also constituted an important source of communication for the applicants. Furthermore, YouTube was also a video website via which users could send, watch and share videos and was undoubtedly an important means of exercising freedom to receive or impart information and ideas. In particular, political information not conveyed by the traditional media was often imparted through YouTube, which had fostered the emergence of citizen journalism. In that sense the platform was unique in terms of its features, its level of accessibility and above all its potential impact, and there had been no equivalent at the material time.

Consequently, although not directly targeted by the decision to block access to YouTube, the applicants could legitimately claim that the blocking order had affected their right to receive and impart information or ideas. Whatever the legal basis had been, such a measure was designed to affect access to the Internet. Accordingly, it engaged the responsibility of the respondent State for the purpose of Article 10.

With regard to the lawfulness of the interference, it had to be noted that the legislation in question had not authorised the imposition of a blanket blocking order on an entire Internet site on account of the content of one of the web pages hosted by it. A blocking order could only be imposed on a specific publication where there were grounds for suspecting that on account of its content that publication amounted to an offence stipulated in the legislation. Consequently, when the court had imposed the blocking order on YouTube there had been no statutory provision giving the courts power to do so. The URL filtering technology for websites based abroad was not available in Turkey. Accordingly, in practice, an administrative body would decide to block all access to the entire website in question in implementation of judicial decisions concerning particular content. The authorities should have taken account of the fact that such a measure, which blocked access to a large quantity of information, would inevitably considerably affect the rights of Internet users and have a substantial collateral effect. Accordingly, the blocking order had not satisfied the condition of lawfulness.

Conclusion: violation (unanimously).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

Article 46: After the introduction of the present case the legislation in question had been amended. Access to an entire Internet site could now be blocked where the statutory conditions were fulfilled. These amendments had been introduced after the facts of the present case. It was not for the Court to rule in abstracto on the compatibility with the Convention of the legal provisions for blocking access to Internet sites in force in Turkey at the material or the present time but to ascertain in concreto what effect the application in this case of the provisions in question had on the applicants’ right to freedom of expression. It was therefore not necessary, in the circumstances of the present case, to rule on the applicants’ request for an indication under Article 46 of the Convention.

(See also Ahmet Yıldırım c. Turquie, 3111/10, 18 December 2012, Note d’information 158, and the factsheet Nouvelles technologies)

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This summary by the Registry does not bind the Court.

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