IDEATE CASE BITES

CENGIZ AND OTHERS VS TURKEY, JUDGMENT OF 1 DECEMBER 2015, 49 AND 52

Issue:

WHETHER THE DENIAL AND BLOCKAGE TO ACCESS INTERNET PLATFORMS SUCH AS YOUTUBE IS AN INFRINGEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS?

Introduction:

Access to the internet and the various platforms such as YouTube offers an expressive platform which is an enabler of the fundamental right and freedom of expression. Any curtailment in the form of blocking such platforms would constitute a derogation of the right to freedom of expression. Each case has to be looked at depending on its own special circumstances.

Brief facts:

In this case, the Applicants complained in particular of a measure that had deprived them of all access to YouTube. On 5 May 2008, under section 8(1) (b), (2), (3) and (9) of Law no. 5651 of 4 May 2007 on regulating Internet publications and combating Internet offences (“Law no. 5651”) of Turkey, the Ankara Criminal Court of First Instance made an order for the blocking of access to www.youtube.com and IP addresses 208.65.153.238 to 208.65.153.251 providing access to the website.

They also argued 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. 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. The Applicants thus lodged the Complaint before the European Court of Human Rights wherein the Court partially allowed the Complaint and pointed out as follows in regard to the importance of the internet with regard to the right to freedom of expression and the right to access information.

Holding by the Court:

The court held the following:

1. 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.
2. 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.
3. 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. 
4. 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.

Summary by:

Arnold Ochieng Oginga, Founder Ideate Tech Policy Africa

CASE BITE

“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”

European Court of Human Rights