Written by Yaman Akdeniz, Professor of Law at the Faculty of Law, Istanbul Bilgi University and Co-founder of İFÖD.
Turkey has a long history of Internet censorship going back to 2007, with the enactment of an infamous law known with by number, Law No. 5651[1] enabling the judiciary as well as an administrative body to block access to certain websites and Internet content. This particular law was initially designed to protect children from harmful content but become immediately the headline across the globe when Turkey blocked access to the YouTube platform for almost 2.5 years between 2008-2010. User-based legal challenges were submitted to the European Court of Human Rights which in turn found a violation of Article 10 of the European Convention and freedom of expression of the applicants in 2015. Although the law was intended for the “protection of children,” various amendments made during 2014 and 2015 widened its ambit. The amended version of Law No. 5651 also enabled the criminal judgeships of peace to block access to Internet content involving personal rights violations, privacy violations as well as content deemed to breach national security and public order.
The amended provisions resulted with access blocking measures targeting the Twitter and YouTube platforms during 2014 and the Wikipedia platform during 2017. These platforms were only accessible again subsequent to several individual applications made to the Turkish Constitutional Court resulting with violation decisions. The widespread use of the Law No. 5651 measures as well as some additional legal measures resulted with access to 408.494 websites, 130.000 individual URL addresses, 7.000 Twitter accounts, 40.000 tweets, 10.000 YouTube videos, and 6.200 Facebook content being blocked from Turkey by the end of 2019 according to EngelliWeb 2019 report[2] of the Freedom of Expression Association (“İFÖD”),[3] before the COVID-19 pandemic started.
During March 2020, with the start of the COVID-19 pandemic and as a result of the rapidly increasing number of COVID-19 cases in Turkey, the government faced widespread criticism through the social media platforms of the delays in the strategy of combating the pandemic as well as measures taken. According to Minister of Interior statistics, 3.576 social media accounts were investigated in relation to “provocative coronavirus content” and 616 suspects were identified and 229 persons were detained between 15 March and 05 April, 2020.
In this context, the government has taken a new step, by turning the COVID-19 pandemic into an opportunity, to introduce further measures to control the social media platforms. With the amendments made to the Law No. 5651 in July 2020, the government introduced the “removal of content” measure in addition to the already existing “access blocking” measure. Furthermore, a completely new measure within the context of the protection of personal rights was also added to the law, namely the non-association of Internet addresses with search engines, a “right to be forgotten” measure alla Turca.
The government also introduced measures to compel social media platform providers to establish legal representation in Turkey within three months with a legal obligation to respond to requests coming from the users in Turkey in relation to claims of personal rights violations and privacy violations within 48 hours at the latest. The social media platforms are also required to enforce access blocking and content removal decisions that they were notified with, obliged to store their users’ data in Turkey and required to publish transparency reports in relation to these requirements every six months. The social media platform providers were threatened with various sanctions if they did not establish legal representation in Turkey, namely, administrative fines, prohibition of advertisement in Turkey through their networks and throttling of their Internet traffic bandwidth from Turkey.
According to the 2020 censorship report of İFÖD, entitled Fahrenheit 5651: The Scorching Effect of Censorship,[4] access to 467.011 websites was blocked from Turkey by the end of 2020 with a total of 408.808 separate orders issued by 764 separate institutions including criminal judgeships of peace and other authorised public institutions.
Personal Rights Violations as a Censorship Measure & COVID-19 Related Censored News
According to the EngelliWeb 2020 report, as of end of 2020, a total of 22.554 news articles (URL-based) were blocked in accordance with Article 9 of Law No. 5651 (personal rights violations provision) by 5.136 separate orders issued by 468 separate criminal judgeships of peace. The number of URLs blocked in 2020 was 5.645. It was also found that 15.832 of 22.554 blocked URLs were deleted or removed by content providers.
Personal rights violations measures, and the decisions issued by the criminal judgeships of peace during 2020 show that a large number of news articles that were of public interest were blocked or removed from publication. Compared to previous years, there has been an increase in the number of politically motivated access-blocking and as of the beginning of August 2020, content removal orders. While the exact number of COVID-19 related blocking or removal decisions is unknown, approximately 50 such decisions refer to the pandemic and the news articles as well as other content subject to blocking or removal decisions seems to be related to the pandemic.
By way of example, a report prepared by the Turkish Medical Association (“TTB”) involving the COVID-19 outbreak in Manisa Organized Industrial Zone and at Vestel factories and the news articles about the TTB report were blocked subject to a decision of the Manisa 2nd Criminal Judgeship of Peace on 28.08.2020 (no. 2020/2257) on the grounds that the personal rights of Vestel Elektronik Sanayi ve Ticaret A.Ş. were violated. The judgeship stated in its decision that “when the content of the news articles was examined, it was found that the articles were not based on any concrete evidence and that as such, it was not possible to discuss the public’s right to information and freedom of the press.” However, the judgeship did not assess the TTB report while reaching its decision. As a result, the URL address of the TTB report[5] and 41 news articles related to the report were blocked.
Similarly, a news article by the daily newspaper Sözcü reporting on an investigation initiated by the Competition Authority regarding private hospitals, which increased the operating room usage fees by approximately four times with a mutual decision, using the increase in costs as an excuse during the pandemic process in Samsun, were blocked subject to a decision of the Samsun 2nd Criminal Judgeship of Peace on 23.09.2020 (no. 2020/3566), on the grounds that the personal rights of the hospitals were violated.
Access to a Cumhuriyet daily newspaper article reporting on the issue of purchase of Covid-19 test kits by the General Directorate of the State Supply Office (“DMO”) affiliated to the Ministry of Treasury and Finance from a company which was issued a ban by the Stock Exchange due to the manipulative actions as well as its CEO being a member of the AKP was blocked with a decision of the Istanbul 3rd Criminal Judgeship of Peace on 15.09.2020 (no. 2020/3738) on the grounds of personal rights violation.
Moreover, access to news articles about a factory worker with a positive COVID-19 test in Gaziantep who continued to commute to work for fear of being fired was blocked with a decision of the Gaziantep 5th Criminal Judgeship of Peace decision on 09.07.2020 (no. 2020/3322) on the grounds of personal rights violation.
Finally, news articles about an Egyptian businessman, Imad Kachkoul, who wanted to return to his country with a private plane due to the COVID-19 pandemic, claimed that he was defrauded by a former AKP Adıyaman Deputy and his relatives were blocked by a decision of the Internet Access Providers Association (“ESB”) on 11.09.2020 (no. 2020/153) on the grounds of personal rights violation.
Lack of judicial transparency as well as the huge number of blocked news articles as well as social media content make it extremely difficult to identify COVID-19 pandemic related content and news which has been the subject of blocking or removal decisions. However, the above examples show that that “personal rights violations” provisions were far broadly applied indiscriminately including in relation to Covid-19 pandemic related news.
Conclusion
Originally intended to protect children from harmful content, the Law No. 5651 and related other legal provisions turned into a complex Internet censorship mechanism which is primarily used to silence criticism aimed towards the government. The COVID-19 outbreak and the pandemic provided further opportunity for the government to introduce additional control measures in relation to the social media platforms by ensuring that social media platforms have legal representatives in Turkey.
The government is now working on further measures to criminalise publication and distribution of content containing disinformation and fake news and the media reports suggests that Turkey intends to criminalise publishing and distributing disinformation with a serious criminal penalty of up to 5 years imprisonment. Furthermore, the authorities are also planning to compel the social media platforms with legal presence in Turkey to remove such content containing disinformation within 24 hours with various penalties including bandwidth throttling in the case of non-compliance. A draft law is expected to reach the Turkish parliament during 2022. In the meantime, it is estimated that the number of blocked websites from Turkey will reach approximately 520.000 by the end of 2021 and that there will be a sharp increase in the number of removal decisions and removed content compared to blocking activity.
Information About the 2020 Report
Fahrenheit 5651: The Scorching Effect of Censorship report was prepared by Professor Yaman Akdeniz (Faculty of Law, İstanbul Bilgi University) and Expert Researcher Ozan Güven.
Reference: İFÖD, Fahrenheit 5651: The Scorching Effect of Censorship, October 2021, ISBN: 978-605-69446-5-9, https://ifade.org.tr/reports/EngelliWeb_2020_Eng.pdf
[1] Law No. 5651 on Regulating Internet Publications and Combating Crimes Committed by Means of Such Publications
[2] İFÖD, EngelliWeb 2019: An Iceberg of Unseen Internet Censorship in Turkey, August 2020, at https://ifade.org.tr/reports/EngelliWeb_2019_Eng.pdf
[3] İfade Özgürlüğü Derneği (İFÖD – Freedom of Expression Association) has been set up formally in August 2017 protect and foster the right to freedom of opinion and expression. The Association envisions a society in which everyone enjoys freedom of opinion and expression and the right to access and disseminate information and knowledge. İFÖD Web Address: https://ifade.org.tr İFÖD Twitter account: @ifadeorgtr EngelliWeb Twitter account: @engelliweb
[4] İFÖD, Fahrenheit 5651: The Scorching Effect of Censorship, August 2021, ISBN: 978-605-69446-5-9, https://ifade.org.tr/reports/EngelliWeb_2020_Eng.pdf
[5] See https://www.ttb.org.tr/haber_goster.php?Guid=277577d0-e6c5-11ea-a71f-a359d317f791