Kader Sevinc - Smart Democracy & Smart Citizenship

  1. 1. What are the official figures on Internet use in Turkey?

49.1 % of the total number of dwellings in Turkey has access to Internet according to TUIK (Turkish Statistical Institute) survey in 2013. In reference to age groups, 49% of the population between 16 and 74 is active on Internet, and 3 users out of 4 have their daily news from Internet papers and magazines. Annual surveys show that the percentage of Internet users increases every year.

2. Why did the bill for Internet lead to a dispute in the country?

First, due to the enactment procedure applied to the original Internet law, the Act 5651. The government was supposed to consult with web publishers, news websites, specialists on information and criminal laws, and with NGO’s having an opinion on the subject, while drafting a bill that includes extremely important precepts for almost 40 million people who already made Internet a part of their lives.

3- Have those concerned not been involved then?

No. To give just an example, IMD (Association for Internet Media) representing t24.com.tr where I am a columnist, among many others was not considered while the bill included crucial precepts concerning journalism.

4- Was the bill exclusively proposed?

No, this didn’t happen either. Regulations on Internet use was not drafted as a bill neither by deputy(ies) nor by the cabinet, however it pertains to more than half of the population within all social groups. AKP (Justice and Development Party) stuffed it into an omnibus bill with 130 clauses.

5- What is an Omnibus Bill?

A bill that proposes amendments in a large variety of acts related to so many diverse issues that the word “omnibus” mostly becomes too small to depict the content of such a bill. The official name of the latest omnibus bill did not even include a clue about Internet regulations: “Bill for Amendments in the Decrees related to Establishment and Duties of the Ministry of Family and Social Policies, and in Some Other Decrees and Acts,” containing 36 acts and 7 decrees.

6- So, the Internet regulation was introduced within this omnibus bill?

No. It was drafted by AKP deputies as “Bill for Amendment in the Act of Regulation on the Internet Publication and Fight against the Crime Committed through Internet Publication” and put into the Omnibus Bill after it was introduced. The omnibus bill initially included 102 clauses and swelled up to 130 with the addenda by the Committee on Plan and Budget.

7- What was the law in force for Internet regulations so far?

It was the Act 5651 (Act on Amendment in the Act of Regulation on the Internet Publication and Fight against the Crime Committed through Internet Publication) approved on 4th May 2007 and enacted on the 23rd.

8- Is this the only regulation that caused a dispute about blocking websites?

The Act 5651 is the original legislation. According to the list received from BTK (Information and Communications Technologies Authority) however there are more 8 acts and 1 decree that allow the government to block websites. The acts and number of their related parts are as follows:

Law on Intellectual and Artistic Works, article 4 (amended);

Law on Tobacco and Alcohol Market Regulatory Authority, article 8;

Turkish Commercial Code, articles 54, 55 and 56;

Law on Fight against Terrorism, article 6;

Turkish Civil Code, articles 24 and 25;

Code of Civil Procedure, article 101;

9- What aspects of the Act 5651 has been criticised?

It has basically criticised at two points: Scope of “catalogue crimes” that regulates the circumstances for blocking websites; power for control given to the government in some situations without waiting for a court decision.

10- What is the “catalogue crimes” and its scope?

A list of crimes as legal baseline for blocking websites available in the Act 5651. Court or government authorities can take action and block websites once they conclude that crimes in this list are committed.

Article 8 of the Act 5651 includes the list of 8 activities, 7 of which are quoted from Turkish Criminal Code: 1. Inducing suicide, 2. Sexual child abuse, 3. Facilitating use of stimulants and drugs, 4. Supply of material causing health hazard, 5. Obscenity, 6. Prostitution, 7. Providing medium and location for gambling.

The eighth activity concerns the crimes that are included in the Act for Crimes against Atatürk.

The Presidency of Telecommunication, Communication under BTK is responsible for legal proceeding. Appeals, notifications and plaints however need juridical processing. A plaint for crime of verbal injury for instance goes to court without informing BTK or TIB. BTK authorities say that court decisions may include even blocking a website all over the world which is actually against the nature of Internet.

11- In what circumstances can the authorities block immediately, based on the Act 5651?

TIB can block international websites immediately in case of catalogue crimes while domestic ones can be blocked immediately in case of obscenity and sexual child abuse.

12- What has been the main debate so far?

Blocking due to obscenity. Authorising the government body for judgment on such a controversial issue on which there is no standard precedents developed by the judicial authorities (several conflicting Supreme Court decisions) resulted in inconvenience. Some consider a given image ‘artistic’ while some others obscene. Serious problems occur due to blocking without court decision and to conception of obscenity as a thread to be wiped out wherever seen, while there are “family” and “child” filter for free on Internet.

13- What is the outlook of Turkey dealing with problems of implementing the Internet law?

Turkey is regarded as a country with an increasing tendency towards “censorship”. Following comments are from EU Turkey Progress Report 2013:

“Problems remained, including continued pressure on the media by state officials, widespread self-censorship, the firing of critical journalists, frequent website bans and the fact that freedom of expression and media freedom are in practice hampered by the approach taken by the audio-visual regulator and the judiciary (page 13)

“Website bans of disproportionate scope and duration continued. The Telecommunications Communication Presidency (TİB) has not published statistics on banned sites since May 2009. An independent website that monitors banned sites stated in September that more than 32 000 sites were not accessible in Turkey.” (page 52)

“The Law on the Internet, which limits freedom of expression and restricts citizens’ right of access to information, needs to be revised in line with European standards.” (page 52)

“The Penal Code and the Law on Misdemeanours were used against transgender persons in a discriminatory and arbitrary manner. The Law on the Internet was used against some LGBTI and other websites which were considered politically and morally unsuitable. The Penal Code provision against resisting an officer in the course of his duty was frequently used to counter accusations of harassment.” (page 59)

14- Are there any further restrictions in the omnibus bill approved, while the original code has been heavily criticised by the EU Progress Report 2013?

Absolutely yes. There are two main problems in that bill: First, it includes precepts giving authority to government body widely for website ban without any court decision. Second, it orders to submit all activities of Internet users to TIB whenever asked.

15- How is the authority of immediate blockage increased?

The authority in the original article 9 of the Act 5651 was limited to obscenity and sexual child abuse. A new addendum to this article however expands the authority with the ambiguous and controversial concept of “right for privacy”: “In certain cases that the delay of blockage may be harmful in regard to violation of the right for privacy, the president of TIB orders and executes blockage.”

The concept of “privacy” is attempted to be used as a reason for TIB and its president to ban news or visual material on a website while there is no consensus on the concept neither among the journalists nor within the juridical precedent standards. This gives ways to ban news about an investigation of corruption. A person under legal surveillance due to involvement in corruption, who is son of a cabinet member, can not be covered on news websites with records of his phone talks to his father.

16- Would this regulation aim to prevent broadcast of sex and private life videos that we have seen prior to 2011 elections?

No, for two reasons. First, the Act 5651 already gives authority to the government body to block obscene content immediately and without any court decision which has been discussed above as problematic. Moreover, Prime Minister Tayyip Erdoğan commented on those videos and said “This is not their private lives, that place is not their bedroom,” relating thus “privacy” solely to “bedroom.”

17- What is the second reason?

The original version of the addendum had not only the concept of privacy, but also the expression “for the reasons to protect others’ rights and freedom” which shows how large power AKP looks for. This expression seems to have been removed at the Committee on Plan and Budget, before it was introduced to the Parliament.

In brief, a bureaucrat employed by the government is able to remove any news and visual material that he / she regards as violation of privacy, without giving notice to the website owner.

18- Is it possible to appeal?

Yes. But, the problem is that the new legislation takes the “censorship” as initial attempt leaving the court out of the process. “Censorship” can also be found in other addenda.

19- Does censorship go beyond the authority given to TIB without court decision?

Yes. Through another addendum to the article 9, individuals may apply to TIB with a request to block content about themselves, if TIB doesn’t take action by itself. The application form for this includes URL, description of violation and applicant’s personal identification. Once the form is completely filled out, what TIB can do is just to send it to the Union of Internet Service Providers with the order to block the content within 4 hours.

Thus, those claiming a violation of their privacy can have a content blocked only by applying to TIB. There is no need for juridical control, or for legal argument from the content provider. The website owner will have learned the blockage later.

Blockage lasts 48 hours if the applicants can not get a court decision.

20- Is there any other regulation disregarding content providers?

Yes. Again, through another addendum to the article 9, individuals can warn content providers or Internet service providers, if the content provider is not available, about violation of privacy. Applications must be replied within 24 hours.

In case an application is made to court, judge may decide to remove the content or to block the entire website if found necessary.

21- What about sharing activity records of Internet users?

Activities include websites visited, durations of visits and contacts of users. The Act 5651 already orders to keep record of activities 6 to 24 months, but confidentially.

In the new legislation, there are two crucial changes. First, minimum time span for keeping records has been raised to 12 months. Second, all the records of Internet activities will be made available to TIB which was in the Act 5651 only for the content providers terminating their activities.

22- What is duty of the Internet service providers union to be founded according the new legislation?

The union will be responsible to implement decisions by government body and court such as ceasing broadcasting, blocking contents and websites. It will make sure blocked websites cannot be access through DNS changes. Membership will be compulsory for every Internet service provider. Statute of the union will be approved by BTK.

 

23- Are there any positive changes at all?

There is. It will be exceptional to shut down entire websites. The new legislation will be predicated on removal of the content concerned. The service providers however have no rights of legal argument until they file appeal to court after the content is removed.

24- Isn’t it true that violation of privacy on Internet is common?

Yes, it is. The problem is not with control itself but with the agent authorised for Internet control. Authorising government body instead of court is unacceptable in states governed by the rule of law as the bureaucrats are the employees working for governments.

25- Is there any possible constitutional challenge in the legislation?

It is possible that the legislation will be taken to the constitutional court due to the article 90 in the Constitution: “Regarding fundamental rights and freedoms, international treaties have priority in case of variance due to differences between laws and international treaties.”

It is noteworthy to remember that Turkey has already been convicted by European Court of Human Rights because of implementations based on the Act 5651.

Doğan Akın

(Turkish) http://m.t24.com.tr/yazi/25-soruda-mevcut-internet-yasasi-ve-getirilmek-istenen-yeni-duzen/8452

Translation by Yetkin Özer

 

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