Freedom of expression in new media in the light of the decisions of the Constitutional Court and the European Court of Human Rights

Communication is defined as the process of conveying a person's feelings and thoughts to other people through a specific channel. As a social being, human must be in communication with other people throughout his life. With communication, which is an interactive process, people continue their lives by learning about each other and their environment. Although the ability of people to think and exchange news with their environment has been ongoing for centuries, these were defined as basic human rights only in the mid-20th century. During the First World War, states realized they had to persuade their citizens to fight. For this, they started to make propaganda through mass media such as newspapers and radio. The states that achieved this at that time continued their propaganda both inside and outside the country after the war. The Second World War, on the other hand, witnessed not only armament and technology but also the propaganda wars of the states. States used mass media to unite the masses for a single goal. They have also begun to search for more effective communication methods to increase their effects on people. These researches prepared the birth of the science field today called communication science. Communication scientists sought an answer to the question of how messages conveyed by mass media or opinion leaders leave impressions in societies and what kind of changes they experience. When the Second World War ended, people remained in the hands of both the studies investigating the ways of effective mass communication and the mass communication tools that started to be developed with the effect of these studies. After the war, different countries established continental and universal organizations to cooperate in economic, political and social fields. These organizations, in order to regulate the economic and social structure that collapsed with the war, first of all tried to define the rights that all people should have regardless of borders. The most important legal texts written for this purpose are the Universal Declaration of Human Rights and the European Convention on Human Rights. In fact, the European Convention on Human Rights has increased its effectiveness by establishing the European Court of Human Rights to monitor the implementation of rights. In both conventions, people's ability to express their thoughts freely and in the way they wish and their attempts to receive and inform them are guaranteed by the right called 'freedom of expression'. Freedom of expression is based on the belief that people get to know each other, offer solutions to problems, freely choose among them, and thus the most beneficial option for people will come to life. For this reason, in today's contemporary democracies, freedom of expression is seen as one of the indispensable rights that ensure the progress of societies. The beginning of the political process, which was called the Cold War and turned into a race of ideologies, increased the importance of mass media. Thus, the need for studies in the field of communication science has increased for states. Some of these studies led to the development of mass media and the emergence of new ones, while some of them were recorded as research focusing on the effects of communication. Communication tools that have emerged in recent years have a number of different features than those in the past. The basis of these features is the convergence, which enables many communication methods with different characteristics to be carried out over a small number of communication tools. Convergence-based communication devices, led by computers and mobile phones, are able to accommodate different communication media through the internet. Today, the communication medium that is accessed from convergence-based devices via the Internet is called new media. Dating back to the end of the 1990s, this communication environment has turned into a huge network of which 43 percent of the world is a part in the past 20 years. Since the virtual dimension of the new media is much larger than its physical dimension, this concept is difficult to define by us humans. Therefore, it can be said that communication scientists have reached a consensus that the new media is based on some principles, although there is no agreed definition on this concept. With its characteristics and the principles on which it is built, new media includes other communication tools of the past and present and has gathered the impact they have created. As the new media started to act as a channel in the communication processes, the issue of how to use the freedom of expression in the new media and what the scope and limits of this right have started to be discussed all over the world. In this study, in order to eliminate the uncertainty in this matter it is primarily made a number of research centers in Turkey. First of all, the conventions prepared by the Council of Europe were examined. Then the studies of the European Union in this field are listed. After that, in Turkey's law on new media, it is described substances associated with freedom of expression. Subsequently, evaluations were made on the decisions of the Constitutional Court on this matter. In this study, which also includes the case law of the European Court of Human Rights on freedom of expression in the new media, all these legal texts were examined through content analysis and it was aimed to determine the scope and boundaries of this field. As a result of the study, Turkey's approach to freedom of expression in the new media, it is clear that is incompatible with the case law of the European Court of Human Rights. In this study legal texts, which is analyzing in preparation and writing process, shows that, Turkey aims to control new media, instead of regulate it. Law No. 5651, which is the basic law of the new media law in Turkey, it is not based on freedom of expression and contains provisions against freedom of expression in the competition of this freedom with other freedoms. As a result, it is believed that, Turkey should make some drastic changes, in its laws on freedom of expression in the new media. While doing this, it should be based on international conventions and world-accepted practices. The European Court of Human Rights tries to draw the boundaries in this area more clearly by following a more consistent path regarding freedom of expression in the new media. It considers the new media independent from the physical world in court proceedings. It tries to examine it within its own characteristics and make its decisions in this direction. The court's decisions impose responsibilities on journalists and users of new media, apart from states and national judicial bodies, to protect freedom of expression in the new media. In the last part of the study, the possible effects of new technologies, which will enter or become widespread in our lives in the near future, on communication and freedom of expression, are discussed through the available data.