On 11 November 2019, ARTICLE 19, alongside the European Centre for Press and Media Freedom, Human Rights Watch, Index on Censorship, PEN International and Reporters Without Borders submitted a third-party intervention before the European Court of Human Rights (the Court) in the case of Wikimedia Foundation Inc. v. Turkey. The case concerns the imposition of a blanket ban on access to the entire Wikipedia site, a free online encyclopaedia, within Turkey since 29 April 2017.
Turkish law currently allows the wholesale blocking of websites by a government agency in a wide range of circumstances. This is despite a clear judgement from the Strasbourg Court to the contrary in Ahmet Yıldırım.
Statistics from the Turkish Freedom of Expression Association (IFÖD), show that prior to 2018, access to a total of 190,922 domain names and websites were blocked from Turkey pursuant to decisions, orders and other legal measures. In the year of 2018, a further 54,903 domain names were blocked from Turkey.
While Turkey has a long track record of undermining freedom of expression online, this has only worsened since the failed coup of 2016. In addition, large numbers of people have been arrested, detained and prosecuted for peacefully expressing their views online.
In our submission, the Interveners argue that:
- Blocking access to websites is an extreme measure of last resort. It is analogous to banning a newspaper or television station. Blocking an entire website is almost certain to amount to a disproportionate interference with the right to freedom of expression.
- Any requirement to block unlawful content must be provided for by law. Where blocking orders are required, they should have a basis in law and should be ordered by a court or other independent body. Blocking orders should be strictly necessary and proportionate to the aim pursued, as narrow as possible and of a limited duration.
- Any order to block access to content, as a severe restriction on freedom of expression, should be limited in scope and strictly proportionate to the legitimate aim pursued. Website blocking should only be conducted following an assessment of whether the blocking order is the least restrictive means available to deal with the alleged unlawful activity, the adverse impact of the blocking, the overall effectiveness of the measure and the risk of over-blocking. The victims of over-broad blocking should have the opportunity to challenge such orders and be notified of their existence.
This is a test case for freedom of expression online in Turkey. It presents the Court with an opportunity to examine for the first time whether the amendments to the Turkish Internet Law (Law no. 5651) following its Ahmet Yldirim judgment are compatible with the European Convention on Human Rights. It is also an opportunity for the Court to address the question of whether blanket blocking orders of websites – particularly those that provide unique access to knowledge such as Wikipedia – are ever proportionate. Our submission is that it emphatically is not.