Turkish Law No. 5651 Article 9’s Annulment in Light of the Principles of Equality of Arms and Adversarial Proceedings, and Proposals for Its Replacement Provision

Abstract

Although the Internet has significantly expanded freedom of expression, it has simultaneously increased potential infringements on personality rights. Focusing on the universal tension between swift content regulation and procedural safeguards, this study analyzes the experience of Türkiye through its Constitutional Court’s (Decision No. 2023/172) annulment of Article 9 of Law No. 5651 on October 11, 2023. Under the annulled provision, individuals claiming personality rights violations could petition penal courts of peace (criminal magistrate), which were mandated to issue ex parte rulings within twenty-four hours without hearings or provider notification. The study highlights that, while the Constitutional Court formally grounded its annulment on constitutional protection of expression and principles of limitation, the underlying substantive rationale rested on the systematic denial of fair trial guarantees, specifically equality of arms and adversarial proceedings. This procedural asymmetry has severely impacted content providers and technical intermediaries, fostering over-compliance and indirect censorship. Evaluating subsequent legislative attempts, the study demonstrates the proposed reforms to have failed to rectify these structural flaws, thereby perpetuating a legal vacuum following the decision’s entry into force. To resolve this impasse, the article proposes a four-pillar model based on new law: define the intervention as a strictly provisional preventive measure, establish a structured timeframe with mandatory adversarial review at the objection stage, embed strict proportionality, and codify binding judicial balancing criteria. Ultimately, the study asserts that balancing judicial efficiency with procedural fairness requires an institutional framework aligned with international standards, one that combines rapid preliminary intervention with robust subsequent adversarial guarantees to protect both effective remedies and freedom of expression.