The ECHR found a violation of the requirements of Article 10 of the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 10 of the Convention. Сведения: 2024-07-04 05:10:44

The ECHR ruling of June 15, 2021 in the case of Melike v. Turkey (complaint No. 35786/19).

In 2019, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Turkey.

The case is appealing against the applicant's dismissal without the right to compensation from a state educational institution for using the "Like" button in some Facebook posts. The case involved a violation of the requirements of article 10 of the Convention.

 

Instagram Facebook and social media products of Meta Platforms Inc. are prohibited on the territory of the Russian Federation on the grounds of extremist activity.

 

THE CIRCUMSTANCES OF THE CASE

 

The applicant, who worked as a cleaner at the Turkish Ministry of National Education during the period related to the circumstances of the case, was dismissed without compensation for putting a "Like" mark under a number of articles published by third parties on the Facebook platform.

 

LEGAL ISSUES

 

Regarding compliance with article 10 of the Convention. Although the applicant's employer was a public authority, the applicant did not have the status of a State civil servant, but was an employee on a permanent basis. As such, she was not subject to special rules on public civil service, and the general provisions of labor law applied to her. Thus, the applicant was dismissed on the basis of a decision of the disciplinary commission established in accordance with the norms on the collective labor agreement in force at her place of work, and the applicant appealed her dismissal to the domestic labor courts.

The applicant was fired for using the "Like" button under a number of articles published by third parties on the Facebook platform, an online social Internet resource. Using this button on social media could be seen as giving people the opportunity to express their interest in and approve of a publication and was as such a common and popular form of exercising the right to freedom of expression online.

The Labour Court considered that the content of the materials, which the applicant noted as "I like", was not protected by the principle of freedom of expression and could disrupt the peaceful and peaceful activities of the applicant's place of work, namely schools belonging to the Ministry of National Education of Turkey, as materials related to teachers could be regarded by them as offensive and to cause concern to parents and students, as well as because some publications were of a political nature. The Labor Dispute Court upheld the findings of the disciplinary commission. Subsequently, the Turkish Constitutional Court rejected the applicant's individual complaint, ruling that the applicant had not proved in her complaint that her right to freedom of expression had been violated as a result of her dismissal.

In their decisions, the Turkish courts do not appear to have conducted a sufficiently thorough study of the content of the publications in question or the context in which they were published. The content of the articles discussed in the case represented aggressive political criticism of allegedly repressive actions by the Turkish authorities, calls and inducements to protest against these actions, expressions of indignation about the murder of the chairman of the bar association, condemnation of alleged ill-treatment of students in institutions controlled by the Turkish authorities and an acute reaction to the statement of a well-known religious figure, perceived as sexist.

The applicant was not a civil servant with a special duty to demonstrate trust and loyalty towards management, but was an employee, therefore, general norms of labor law were applicable to her. The obligation of employees in private-law employment relations to show loyalty, restraint and discretion towards their employer is not as strict as the obligation of public civil servants to demonstrate loyalty and restraint.

The Turkish courts did not consider the potential impact of the measures taken against the applicant, although this was important in assessing the possible impact of an online publication in order to determine the limits and nature of the impact on the audience.

The applicant was not the person who created and published the articles under appeal on the aforementioned social network, her actions were limited to using the "Like" button under the articles. The fact of using the "Like" button could not be considered as significant as the dissemination of the content of the mentioned articles on social networks, since using the "Like" button simply meant expressing sympathy for the published information, and not an active desire to distribute it. The Turkish authorities also did not claim that the articles discussed in the case were read by a large audience of the social network. Some of the relevant articles received only about a dozen "Like" marks and a few comments. Moreover, given the nature of the applicant's work, the fact that she was not a well-known person and had a limited official status at her place of work, her Facebook activity could not have any significant impact on students, their parents, teachers and other school employees. Facebook The Turkish authorities did not indicate in their decisions whether the listed groups of persons had access to the applicant's Facebook account or to the data on the "Like" marks, based on the parameters, connections and the degree of popularity of the applicant's Facebook profile.

In any case, the Turkish authorities did not specify in their decisions whether, in the period between the publication of the articles in question and the start of the disciplinary proceedings (which ranged from six to nine months, depending on the publication), the applicant's "I like" marks were noticed or appealed by students, their parents, teachers or other employees at the applicant's place of work and became whether they are grounds for incidents of such a nature that would disrupt the tranquility and order at the applicant's workplace.

Thus, the Disciplinary commission and the Turkish courts did not take into account all the relevant facts in the circumstances of the present case when they concluded that the applicant's contested actions violated the peace and order at her workplace. In particular, the Turkish authorities did not attempt to assess the potential ability of the "I like" marks to cause an adverse reaction at the applicant's place of work, taking into account the content of the materials to which these marks expressed approval, did not analyze their professional and social context, as well as their limits of action and consequences. Consequently, the reasons given in the present case for the applicant's dismissal cannot be considered relevant and sufficient.

Finally, the disciplinary commission, in its decision, which was left unchanged by the Turkish courts, applied the maximum permissible punishment provided for in the collective labor agreement, namely, immediate termination of the employment contract without the right to compensation. This was undoubtedly an extremely severe punishment, especially taking into account the applicant's work experience and her age.

Accordingly, there was no reasonable proportionality between the interference with the applicant's right to freedom of expression and the legitimate aim pursued.

 

RESOLUTION

 

The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).

 

COMPENSATION

 

In the application of article 41 of the Convention. The European Court awarded the applicant 2,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.

 

Instagram Facebook and social media products of Meta Platforms Inc. are prohibited on the territory of the Russian Federation on the grounds of extremist activity.

 

 

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