Violation of Article 10 in Yildirim v. Turkey (no. 3111/10)

By Professor Lorna Woods

Yildirim concerned the blocking by the Turkish authorities of all access to personal sites on the “Google.com” network, with the aim of prohibiting access to one such site in particular.

The order for blocking arose as one site had insulted the memory of Atatürk and the Turkish Telecommunications and Electronic Data Authority (TİB) (responsible for implementing the order) advised the court issuing the order that for technical reasons TİB would need to block sites.google.com entirely in order to block the offending site. Therefore, the court granted that request.

The blocking order had the effect of preventing the applicant from accessing his own site, which to publish his own academic work as well as his opinion and comments on various matters and which had no connection to the site concerned. Yıldırım claimed that this measure breached his right to freedom to hold opinions and to receive and impart information and ideas.

The case was communicated to the Grand Chamber on 31.01.2011 and the Court handed down its judgment on 18^th December 2012 [PDF] and it found a violation of Article 10 ECHR. The Court reiterated established case law that Article 10 applied not only to the content of information but also to the means of disseminating it.

The Court noted the significance of the Internet, which in the ECtHR’s view has become one of the principal means of exercising the right to freedom of expression and information. While the blocking order was based on a court order itself based in Turkish law, which empowers a court to order the blocking of access to content published on the Internet if there were sufficient reasons to suspect that the content gave rise to a criminal offence, the ECtHR found that the relevant Turkish law did not authorize the blocking of an entire online platform, such as Google Sites.

The Turkish law did not therefore satisfy the requirement (under Article 10(2) ECHR) that any law restricting freedom of expression must be formulated with sufficient precision to enable individuals to regulate their conduct. Further, there was no evidence that Google had been informed of the illegal content or that it had refused to comply with an interim measure concerning the offending site, suggesting a lack of proportionality.

The law also failed to provide sufficient safeguards against potential abuses. The ECtHR reiterated that a restriction on access to a source of information would only be compatible with the ECHR if a strict legal framework was in place both regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses.  Here, the court had simply allowed too much latitude to TİB.

Clearly, the handing down of sweeping blocking orders which include much legitimate content as well as potentially illegitimate material, constitutes a severe violation of freedom of expression.  While the ECtHR has recognised the significance of the Internet, this judgment does not mean that no blocking orders can comply with Article 10 ECHR.

The ECtHR’s reasoning is based on the facts of the case where there was an extreme response to a particular problem.  What this case does make clear is that laws seeking to enable blocking orders will require careful drafting, so that any orders are as targeted as possible and that there must be effective scrutiny of the need for such orders.

Lorna Woods: Advertising Standards Authority and the Internet

By Professor Lorna Woods

There has been lots of discussion about press regulation and self regulation of late, with the PCC clearly in need of reform [see Leveson recommendations].  There are still voices arguing that self-regulation can work and often the ASA/CAP system is paraded of one such system of self-regulation that works. Certainly, the ASA is an effective organisation, but it is questionable whether it is true self-regulation. It works on the basis that the ASA sanctions have bite as its various members will restrict advertisers’ access to advertising space when advertisers do not comply with the code.  It has a further backstop: the ASA may refer matters to the OFT under the Consumer Protection Regulations or the Business Protection Regulations.  To date, reliance on the backstop powers of the OFT has been very much the exception.  Are things changing, however?

Looking at the decisions of the ASA, a sub strand of cases is appearing. Many of the complained of advertisements appeared on the internet, including quite a number on companies’ own websites.  This raises questions about the ASA (co) regulatory system.  It has been very successful to date, but it has been based on an industry that had effectively a small audience, the media outlets and advertising agencies acting to a large degree as a funnel for the regulatory process, being a relatively small group that allowed ASA rules and rulings to reach out to the advertisers more generally.  Essentially, this was a professional audience.  That has changed: the internet has increased the number of outlets available and introduced the age of the amateur.