need or is not the last remedy to resort to, it cannot be considered as a measure which is in
conformity with the requirements of the democratic order of the society. Similarly, while
looking into the existence of a pressing social need, an abstract evaluation should not be made
but various elements such as the title of the individual who gets involved in the medium of
expression and who also expresses, the identity and level of reputation of the targeted
individual, the content of the expression, the contribution the expressions make to a
discussion in relation to the general interest which concerns the public opinion. (For the ECHR
judgments on this subject, see Axel Springer AG v. Germany, [BD], App. No: 39954/08, 7/2/2012; Von
Hannover v. Germany (no. 2), [BD], 40660/08 and 60641/08, 7/2/2012).
42. The intervention made by the public authority should be based on just reasons
and during the restriction of rights and freedoms, the essences of the rights should not be
infringed upon and such restriction should be proportional. Restrictions which significantly
complicate and make difficult the exercise of the right in conformity with the objective
thereof implicitly render it useless and eliminate its impact and infringe upon the essence (see
CC, M. 2006/121, D. 2009/90, DD. 18/6/2009). Through the principle of proportionality
which is described as striking a just balance between the objective of restriction and the tool
of restriction, the aim is to prevent regulations which restrict rights and freedoms more and
introduce more severe liabilities on individuals who will exercise the rights although it is
possible to attain the objective of restriction by means of less restrictive or less severe
measures. Thus, if a restrictive measure taken in order to attain a specific objective is more
severe and strict than required, that restriction is neither proportional nor in conformity with
the democratic order of the society (App. No: 2013/2602, 23/1/2014, § 51).
43. The state has both positive and negative liabilities in relation to the freedom of
expression. Within the scope of negative liabilities, the public bodies should not ban the
expression and dissemination of thought as long as this is not compulsory within the scope of
articles 13 and 26 of the Constitution whereas, within the scope of positive liabilities, it
should take the measures necessary for the actual and effective protection of the freedom of
expression (for a similar opinion of the ECHR, see Özgür Gündem v. Turkey, App. No:
23144/93, 16/3/2000, § 43). While striking this balance, through the limited reasons and
legitimate objectives prescribed in the law within the scope of articles 13 and 26 of the
Constitution, it is necessary to observe a proportional balance between the objective and tool
of restriction and the essence of the right should not be infringed upon by taking into
consideration the requirements of the democratic order of the society (App. No: 2013/2602,
23/1/2014, § 56).
44. The Constitutional Court will determine, according to the unique character of
each case, whether an intervention is required in a democratic society, whether the essence of
the rights has been infringed upon during the intervention and whether the intervention has
been proportional or not (App. No: 2013/2602, 23/1/2014, § 61).
45. In the concrete case, the applicants have asserted that their freedom of expression
is violated due to the blockage of access to the web site with the domain name twitter.com
which they are users of. Following the explanation of the general principles, during the application
of these general principles to the concrete case, it will be determined “whether there is an
intervention or not”, if there is, “whether the intervention is based on just reasons or not”, if there
are just reasons, “whether the intervention is required for the democratic order of society and
whether it is proportional or not”.
46. Although it is understood in the case which is the subject of the application that
TİB has blocked access to the web site twitter.com on the basis of some court judgments, it is
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