“Naif Şaşma” Decision of the Constitutional Court of Turkey
The Constitution Court of Turkey rendered a noteworthy decision on 9 October 2019 regarding corporations’ responsibility to protect and respect human rights as private organs of the society. In its decision the Constitution Court stated that the internet domain name does not fall in the scope of freedom of expression and the dissenting opinion remarkably is the only reference in Turkish case law reflecting the view that companies also have a responsibility on protecting and respecting human rights.
Mr. Naif Şaşma, represented various Y. Kargo employees before labor courts, whose employment contracts were terminated by Y. Kargo company. Ex-employees of Y. Kargo created a website (“…kargomagdurlari.com” (…cargovictims.com)) to post their opinions and to raise other criticisms against Y. Kargo regarding their unfair dismissals as well as how the company had abused their rights. Mr. Şaşma was the owner of the domain name of that website.
Y. Kargo filed a lawsuit against Mr. Şaşma based on the violation of its trademark right and unfair competition under relevant provisions of the Turkish Commercial Law numbered 6102. The 1st Instance Court noted the following: “Even if there is no commercial use, the expression “… cargo victims” creates a negative connotation on the plaintiff’s trademark, the use of the domain name humiliates the plaintiff and damage its commercial reputation…” and therefore, the 1st Instance Court ordered Mr. Şaşma to pay a TRY 2,000 as a non-pecuniary compensation. The decision was also upheld by the Court of Appeals.
Mr. Şaşma made an individual application to the Constitution Court on the grounds that his freedom of thought and expression, the equality before the law, freedom of communication and right to fair trial were collectively violated. Yet, the Constitution Court chose to review the individual application on the ground of freedom of thought and expression and left other violation claims unanswered. The Constitutional Court decided that the limitation on the applicant’s freedom was prescribed by the law (e.g., the Turkish Commercial Law) and then applied the final test and found that the interference complained of corresponded to a pressing social need and was proportionate to the legitimate aim pursued. Accordingly, the Constitutional Court ruled that there was no violation of freedom of expression and interferences with Mr. Şaşma’s freedom of thought and expression have been necessary in a democratic society – without paying attention to other rights and freedoms protected under the Constitution of Turkey and without investigating the concept of “necessity” involved in or “pressing social need” behind launching a website for victims of the cargo company.
Nevertheless, one of the justices Mr. Engin Yıldırım drew the attention to the corporate responsibility to respect human rights in his dissenting opinion: “In the global economy and free market conditions, some companies have gained greater economic, political and social power in terms of affecting the lives of individuals and communities than most nation-states. As a reflection of the increasing trend towards extending human rights to include non-state actors in terms of legal responsibilities and obligations, which have historically been developed to protect the individual against the state (…) The raison d’être of human rights is to hold powerful institutions that affect people’s lives accountable. Nation-states were the strongest institutions in the period when human rights emerged as a positive law. Human rights were inherently developed to protect individuals from the state, and when they were first introduced it was not thought that companies could affect the enjoyment of human rights. After all, the fact that human rights violations are committed by the nation-state or by a non-state actor often makes no difference to those whose rights are violated. Leviathan can manifest in a nation-state organization as well as in a corporate form (…)”.
Mr. Yıldırım also stated that the website had functioned as a forum for the victims, where information and updates regarding their lawsuits against the cargo company were shared with public and thus, blocking a website with such function and purpose for an indefinite period of time cannot be accepted as a proportionate way of interfering with freedom of expression and thought of cargo company victims and Mr. Şaşma.
In this decision, the conflict between the right to property linked to commercial reputation of a company and freedom of expression of workers, whose labor rights are still being violated by a cargo company has resulted in favor of the company’s property right. There has been an unfair practice or interpretation of the law for a long time and thus, the right to property repeatedly prevails over other individual rights and freedoms; and, individuals are left without their ability to exercise and enjoy their rights on the grounds of corporate reputation and unfair competition.
 See UN Guiding Principles on Business and Human Rights,
 Articles 56/1-d and 56/1-e of the Turkish Commercial Law numbered 6102