Turkey's New Internet Law: Analyzing its origins and impacts
In recent years, politically engaged individuals and institutions have grown increasingly vocal in their criticism, arguing the clampdown on the freedom of speech and communication in Turkey has reached a level not seen in its history. Regrettably, this conviction is well-supported by a library of concrete evidence. Turkey has become the world’s worst jailer of journalists, and the nation with the highest number of content removal requests on Twitter. Moreover, at the time of research, findings suggest up to 90 or 95 percent of the conventional media is under government control. Despite this, the government decided to bring forth its long-held ambition to arm itself with sweeping powers to curb social media platforms, a space where it has so far failed to establish full control.
The question is why did the AKP government prioritize a new law regulating the internet and social media at a time when Turkey is facing a deepening economic crisis, and is among the many countries hit by the COVID-19 pandemic? On the one hand, public opinion polls suggest the AKP’s 17 years of successive rule is fizzling out. On the other hand, however, we have yet to see whether debates over the poor management of the pandemic, the long-standing and deepening economic crisis, and significant depreciation in Turkish Lira will reflect unfavourably on the government in the event of an election. Meanwhile, social media platforms and dissenting/alternative media relying on these platforms were the only mediums where concerns over this deterioration could be raised and discussed.
Social media networks used to be a breathing space in Turkey
In a media landscape where it is virtually impossible to criticise neither the government nor President Erdogan, and which permeates with praise over government policies, there is a constant demonisation of dissent. People who could not carve out a niche for themselves have a narrow window of opportunity to speak their minds on social media networks and seek refuge in other media outlets offering alternative views and opinions. Yet, even in this space, one still has to tangle with an army of pro-government or state-sponsored disinformation brigades and sock puppets, all poised to stifle the critical voices of many accomplished journalists exiled from the mainstream media. Also known as “trolls”, these accounts use a wide range of techniques to systematically intimidate internet users, make them targets for the judiciary or law enforcement units, and quell users through acts of cyberbullying. While these tactics prevent users from airing sharp criticism and dissent, they also lead to self-censorship, or at times, deter others from expressing their views.
For instance, world-renowned pianist Fazil Say became the subject of an indictment, in which he was accused of “publicly insulting religious values that are adopted by a part of the nation”– an offense carrying up to 1.5 years in prison – for tweeting verses from poet Omer Khayyam.
In another case, unidentified individuals broke into the centralised call-to-prayer system and blared the Italian protest song “Bella Ciao” from mosques in the İzmir province on May 21. Social media user Banu Özdemir, who witnessed the incident and shared a video of it on Twitter, was detained and later remanded in custody for “insulting religious values.”
In recent years, many internet users who shared posts regarding the sharp depreciation of Turkish Lira against the U.S. dollar and Euro on their social media accounts were either prosecuted or remanded in custody on the charges of “disseminating propaganda for a terrorist organisation” or “contravening the Law on Capital Markets.”
Perhaps, one of the most gripping cases of recent weeks was the detention of Oktay Candemir, a journalist, who after critically tweeting about “The Awakening: Ertuğrul”, an epic, but fictionalised TV series about the founder of the Ottoman State, was charged under Article 130 of Turkish Penal Code for “insulting the memory of Ertuğrul Gazi”, i.e. the real historical person. It is possible to refer to countless other cases in our country. In addition, we must recall the active role played by an army of pro-government trolls in online targeting and bullying. Yet, it is equally important to note that Twitter recently disclosed the removal of a total of 7,340 accounts linked to the Justice and Development Party (AKP) for violating the platform’s manipulation policies.
Particularly over the last few years, both pro-government circles and ruling party-sponsored columnists have frequently confessed their failure to control social media networks. While exiled journalists and academics continue to attract the attention of millions, the sales of pro-government newspapers plummeted, and the ratings of pro-government media outlets remain dramatically low.
In a bid to prevent a further decline, a new law was unleashed by the ruling party, which is acutely aware of the current state of affairs, requiring social media platforms accessed by more than one million people daily to designate a local representative in Turkey. Those failing to comply with this measure will have their bandwidth slashed by up to 95% by the Information and Communication Technologies Authority (“ICTA”). In addition, if the companies will face hefty administrative fines, depending on the nature of non-compliance, if they fail to respond to content removal requests from authorities within 72 hours, do not submit their reports in three-month periods to the ICTA, do not enforce takedown decisions issued by courts within 24 hours of having been notified, or store data belonging to users in Turkey outside the country.
Unplugging the internet in Turkey
Even enforcing only a few of these envisioned sanctions will be tantamount to unplugging the internet. While social media platforms are required to establish representation in Turkey, those failing to abide by this rule will be subject to graduated reductions on their bandwidth, including a slash by up to 95%. For instance, should Twitter fail to designate an official representative in Turkey, its bandwidth will be throttled. In practice, such a move would amount to technically blocking access to the platform.
Given the fact there are hundreds of social media platforms and communities across the world, the manner in which compliance with this new law is enforced remains to be seen. As a matter of fact, companies like Twitter have long refrained from establishing representation in our country since they are well-aware what might befall upon them within our justice system. Moreover, not all social media platforms are incorporated, and there are virtually innumerable social networks scattered all over the globe without headquarters.
Besides, a prior version of the law has already been invoked to restrict any form of dissenting opinion, content or news, and also hampered citizens’ right to freedom of information. Although the AKP is insisting the purpose of this new regulation is yet another measure to protect freedom of expression, and adding that similar steps are being taken everywhere; this law will, however, translate into increased restrictions on freedom of speech and freedom of media on the internet, and potentially pave the way for additional probes and censorship in Turkey. According to the statistics published by the Freedom of Expression Association in Turkey, by the end of 2019, 408,494 websites, 130,000 URLs, 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube videos, and 6,200 Facebook content items remained blocked. Yet, despite these figures, the justification of the new law states “the ability to control the content of materials produced on social network platforms, and the possibility to design user interaction and user interface largely remain in companies’ hands, operating these platforms” and thereby new law demands sweeping powers. This recent move against liberties is, however, yet another testament to the government’s ambition of securing a total silence in society. Although the government retains a firm control over the mainstream media, it appears that it is now seeking to silence online journalists and other media outlets.
The new law was defended with a clear reference to Germany
Before passing this new law, a number of incidents propelled its adoption, and the government was quick to use these incidents as an excuse to pass measures aiming to regulate online content. The first incident was a number of insulting tweets shared after the President Erdoğan’s son-in-law and also Treasury and Finance Minister announced his wife – and daughter of Erdoğan – Esra Albayrak gave birth to their fourth child. This incident has been belaboured by the government officials, often times, accompanied by calls to control hate speech and insults. Eventually, President Erdoğan also joined the debate, adding: “We do not want to see or experience such incidents that do not suit the nation. The key issue which we need to focus on is how the media, and especially social media spaces, have become means for such rottenness. Those spaces, where lies, defamation, attack personal rights, and character assassinations are running wild, should be put in order. Such spaces do not suit this nation or this country. For this reason, we want such social media spaces to be entirely removed and to be controlled by bringing a bill to parliament as soon as possible.”
Opposition parties as well as internet and media freedom activists criticized the draft law, arguing the bill would further tighten the grip, and reinforce the puritanical, oppressive and authoritarian climate prevailing in the country. In response, the government defended the draft bill by making references to existing regulations in Germany, France and the USA. During parliamentary debates, for instance, Germany’s Network Enforcement Act (or “NetzDG”), which was adopted in 2018 with the claim of rapidly tackling hate speech, fake news and illegal content, was referred to as an example and thus, as a proof of the proposed draft’s compatibility with universal principles. Provisions such as subjecting social media platforms with a certain number of users to the purview of the law, the obligation to designate a local representative, and the taking down of manifestly illegal content within 24 hours of the submission of the notification have all been directly incorporated from the NetzDG.
The NetzDG became the subject of many heated debates and controversies in Germany, both during its codification and in its aftermath.Confronted with soaring racist and discriminatory remarks as well as rising hate speech, Merkel’s government introduced this bill caliming it would uphold the protection of all ethnic and religious groups, including minorities and disadvantaged persons, in Germany. Justifications cited during the introduction of the law included the need to clamp down on far-right groups’ abuse of online platforms to spread fake news, pranks, and hoaxes, and to lodge direct death threats, and the necessity to prevent terrorist acts being planned and organised through online platforms.
As stated above, however, notwithstanding lingering debates on NetzDG, there are marked differences between the implementation of this law in Germany, an established democracy with a strong separation of powers, and its implementation in more authoritarian-leaning countries experiencing rapid democratic backsliding. When compared to other countries such as Turkey, both the codification process and actual practices in Germany are believed to have posed less harm to the freedom of speech.
While Turkey was already undergoing significant challenges in the area of freedom of speech and fundamental rights with the previous version of the law, provisions directly exported from NetzDG such as mandating social networks to appoint a representative and designate a representation within the country, the possibility of accessing to user data, a regulatory fines to be imposed on social networks failing to remove the content despite being notified by the court as well as other provisions inspired by NetzDG further compound the problems in Turkey.
Despite fierce opposition in parliament, the AKP government only allowed an overnight debate and moved the bill forward after by-passing opponents with the help of its comfortable majority. Recalling the overall impact or success of such a legislative move is yet to be corroborated in Germany, where opposition parties have assiduously questioned the insistence of passing the bill, yet to no avail.
When the NetzDG was codified in Germany, many internet activists and sociologists feared this law would serve as a model to autocratic countries. Indeed, having initially inspired legislators in Russia, Singapore, India, Malaysia, Brazil, Philippines, and Venezuela, the NetzDG eventually reached Turkey, and played an active role in the adoption of a more oppressive law seeking to intensify the crackdown on freedom of speech.
AKP members have defended the bill, arguing that the public needs this law, that it adheres to current norms around the globe, and adding, that the most updated and modern version of the bill has already been adopted in Germany. After securing the commission’s approval on the sanctions which have been largely and directly incorporated from the NetzDG, the government eventually enacted the bill on the first working day of the Parliament.
The law was adopted in Turkey without including any autonomous institution in the process, and only after a one-day debate in the parliamentary sub-commission where the input of opposition parties, NGOs and independent institutions were entirely dismissed.
The Novel “Nineteen Eighty-Four” have come true
Another controversy relating to the recent “Law Amending the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication” is the “right to be forgotten.”
The new law is not merely targeting local content, but global content as well. It appears the government is no longer willing to settle for blocking access to social media accounts of journalists, media outlets, tweets, Facebook posts, and YouTube videos within Turkey; but rather seeks to directly remove content and shut down user accounts.
Along with the constant surveillance of the society by “telescreens” for the sake of the present and future “security policies”, one of the most interesting features of George Orwell’s novel “1984” was that every morning, people woke up with completely erased memories, under an authoritarian regime retrospectively altering or wiping out newspapers and other published materials. Such societies are, inevitably, susceptible to the manipulation of authorities, and even the slightest dissent is stifled. In other words, each new day brings yet another alteration of the collective memory. The footsteps of this dystopic dawn in our country, on the other hand, are actually drawing near. While in the aftermath of the July 15th, 2016 coup attempt, relations between the AKP and other individuals, organisations, and sects during the term of 2012 and 2013 are now treated like they never happened. News mentioning these relations or names of government officials or their proxies are blocked for various reasons and under the right to be forgotten.
Yet academics, journalists, authors, and civil society leaders who actively put up a struggle against these organisations by penning articles, reporting, documenting, and conducting research on these networks are now prosecuted for their opinions or statements, often charged with being a member or a supporter of these organisations. Nowadays, we are stepping into the darkest period of Turkish history regarding freedom of speech, expression and the internet.
Most notably, in the last couple months, courts have issued unprecedented legal orders blocking access to news reporting on the irregularities in public procurements, corruption, violence against women, child abuse, employee suicides, strikes, visits of high ranking politicians or bureaucrats, and similar topics for a variety of reasons including preventing “attacks on personal rights” or “maintaining national security and public order.” By the same token, the very same courts issuing such orders have also ordered to block access to news reporting their decisions. Yet, when the new law takes effect, all this content shall be removed. The majority of content removal requests are related to events igniting public outcry, and thus calling for more transparent investigations. Many also raise deepening concerns the new law will result in a complete removal of such content, and a categorical amnesia for our society.
Conclusion
The “Law Amending the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications,” which had already entered into force, is clearly a much harsher version of the NetzDG.
Compared to many other countries, our legislative framework has already been more oppressive and punitive, and restricting or even partly encroaching upon the freedom of speech, in a manner that is far beyond those required by the positive obligations of the state.
What should have been done was to review the current legislative framework in favor of citizens. But what happened in reality will bring forth more restrictions on citizens’ right to privacy, right to communication, and right to freedom of speech.
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This article is translated by Veysel Eşsiz.
