violations of freedom of expression and freedom of the press due to the award of damages against journalists for the news they published
Events
The applicants are the reporter, the owner and the publisher of a national newspaper. In the 2/10/2013 issue of the newspaper, an article titled “They made the daughter of the martyr cry!”, which included photographs of the plaintiff (the teacher), was written describing the pressure and persecution that the 10th grade female student was subjected to at her school where she went to school wearing a headscarf
The Civil Court of First Instance rejected the claim for compensation filed by the plaintiff against the applicants, stating that his personal rights had been damaged by the relevant news article. Upon the appeal of the decision, the Regional Court of Appeal decided to award a total of 5,000 TL compensation against the applicants jointly and severally.
Allegations
The applicants claimed that their freedom of expression and freedom of the press had been violated due to the award of compensation against them for the news they had published in a national newspaper.
The Court’s Assessment
Regional Court of Appeals; “Some ignorant people spew their hatred and hatred against headscarves just to satisfy their egos. Here is a new example…”, does not take place within the scope of the right to criticism and freedom of expression, and that by adding the photograph of the plaintiff, a perception was created in an unrealistic way as if the plaintiff was hostile to religion and hostile to headscarves. The Court ruled that the news article, in its entirety, was not in accordance with the apparent reality and was an attack on the personal rights of the plaintiff.
One of the main issues in the news article subject to the application, on which the Court of Appeal based the compensation, was that the allegations that the plaintiff teacher mistreated her student because she came to school wearing a headscarf and that the student faced negative attitudes in this context did not reflect the truth. Looking at the events as a whole, it was evaluated that the news article showed the people who were the source of the allegations that the student was subjected to severe pressure and threats – whether true or not – due to wearing a headscarf at school, that the journalist acted in accordance with his responsibilities in this respect, and that the factual allegations were not contrary to the apparent reality and were not baseless.
With the amendment to the regulation on the dress code of students in schools affiliated to the Ministry of National Education, it became possible for middle and high school students to wear headscarves to school on 27/9/2014. In the period before the amendment, the issue of whether or not students of this age could wear the headscarf to school was widely debated and these debates were widely publicized. The news article was written about an event that constituted a sensitive issue for a large part of the society in the period before the amendment of the Regulation.
It may be accepted that the expressions in the news article were offensive to the plaintiff. However, according to the Constitutional Court, especially public officials should show more tolerance to criticism of their actions. It is an indispensable requirement of tolerance in a democratic society that public officials contribute to the decision-making processes of citizens by subjecting their actions and omissions to strict scrutiny. In this context, the mere fact that an opinion expressed is harsh, criticizes the authorities harshly, is expressed using sharp language, or is even one-sided, contradictory and subjective does not mean that it will not benefit from the protection of freedom of expression.
It was evaluated that the statements taken as a basis for evaluation by the Regional Court of Appeal were in the nature of a heavy criticism of the opposing attitude of the teachers towards a student who wore the headscarf at school, that they aimed to draw attention to this issue, and that they were related to a debate of public interest. In addition to this, it was concluded that the plaintiff’s own behavior caused the plaintiff to be heavily criticized in the news article against the understanding that the student was somehow warned in front of her other friends because she wore a headscarf; in this respect, it was concluded that the statements in the news article did not constitute an unprovoked attack.
Despite these findings, the Regional Court of Appeals, without discussing the conditions at the time when the statements subject to the application were used, the context and factual basis of the statements, took some of the statements out of context and without considering that they had sufficient factual basis, and decided to pay compensation against the applicants.
When the decision of the Regional Court of Appeal is evaluated together with the conclusions of the Constitutional Court, it cannot be said that the court struck a fair balance between the applicants’ freedom of expression and the plaintiff’s right to honor and reputation. The grounds provided by the Regional Court of Appeal to justify its acceptance of the case against the applicants were not deemed appropriate and sufficient, and it was concluded that they did not correspond to the social need to justify the restrictions imposed on the applicants’ freedom of expression and freedom of the press under Articles 26 and 28 of the Constitution.
The Constitutional Court, on the grounds explained.