On 29 June 2020, ARTICLE 19 submitted a third-party intervention before the European Court of Human Rights (the Court) in the case of Recep Özdemir v. Turkey. The case concerns the compatibility of the applicant’s pre-trial detention and conviction for terrorist propaganda on the basis of his activity on Facebook, which included sharing a video and photos showing the members of an illegal organisation under Turkish law and liking photos and comments.
This is a test case for freedom of expression online in the context of terrorism in Turkey and throughout the Council of Europe. It represents an opportunity for the Court to elaborate on the proper approach to “terrorist propaganda” cases on social media and clarify the circumstances, if any, in which a criminal conviction for apology of terrorism may be justified under Article 10 of the European Convention on Human Rights (ECHR) on the basis of merely sharing or simply ‘liking’ a post on social media. This would also provide guidance for similar cases at the domestic level.
In the submission, ARTICLE 19 addresses the nature of online communications in particular that individuals often say the first thing that comes into their heads and react in the heat of the moment, including when sharing content. We examine the nature of ‘likes’, in particular the difficulty to assign a precise meaning or intent to their use. We further invite the Court to consider international standards and best practices on incitement to terrorism and urge the Court to examine closely the extent to which of Article 7 (2) of the Turkish Anti-Terrorism Law complies with the legality requirement under Article 10 (2) ECHR. Finally, we set out six criteria that the Court should have regard to on how to examine social media communications in the context of national security:
(i) Ordinary users often react in the heat of the moment and are generally unlikely to be aware of the legal implications of the information that they ‘like’ or share online;
(ii) In the vast majority of cases, merely ‘liking’ a statement posted by another user should be insufficient on its own to lead to a conviction for a serious offence such as ‘disseminating terrorist propaganda’, since it is inherently unclear what the user intended to convey merely through ‘liking’ without further comment;
(iii) In the vast majority of cases, simply sharing or repeating a post should not, on its own, be considered indicative of sufficient intent to incite to the commission of terrorist acts, since sharing a post does not necessarily signal endorsement of the content;
(iv) In examining the extent and magnitude of an online communication, the semi-open nature of Facebook should be taken into account;
(v) The transitory nature of information liked or shared on social media is such that it is less likely to have a significant impact;
(vi) The likelihood of a terrorist act occurring as a result of merely ‘liking’ someone’s post is likely to be nil or minimal, even if the original post is subsequently found to be unlawful.
In this intervention, ARTICLE 19 invites the Court to consider that as a matter of principle, ‘likes’ should not be given any, or any significant weight in carrying out its assessment of the intent of the speaker. Similarly, merely sharing someone else’s content should not generally be considered indicative of intent to commit a terrorist offence in the absence of other evidence or elements of context. To hold otherwise would significantly undermine the protection of freedom of expression.