March 3, 2014
BRIEFING NOTE ON THE NEW LAW ON THE INTERNET
On February 2014, The Turkish Parliament enacted new legislation amending Law No..5651 titled “Regulation of the Publications on the Internet and Combating crimes Committed through these Publications”. It will come into force when countersigned by the President of the Turkish Republic who, by the way, has the right to return it to the Parliament for reconsideration. The legislation when proposed by the ruling Justice and Development Party (AKP) was criticized severely by the public on account of its violation of the right to privacy, freedom of expression and of the principle of free and open internet. The law, as it stands, also violates the freedom of association and the right to a fair trial.
Aside from its problematic nature and content, the method, tactics and procedure pursued by AKP for its adoption by the Turkish Parliament were anything but democratic. The proposed act was not a separate bill, but was added into an omnibus bill covering a wide range of different subjects. There was no prior consultation with web publishers, news websites, NGOs or other internet stakeholders.
Art.88 of the law stipulates that web hosting services will be obliged to store the users’ traffic information for at least one year and up to two years. The conservation of the users’ traffic information for such a long period will with the pretext of national security lead to data profiling. This practice may lead to a situation where citizens visiting given sites or contacting particular people might be considered guilty by association. Furthermore the hosting service providers will be obliged to provide any users’ information to the Ministry of Transport and Communication’s Directorate of Telecommunications (TİB) without the requirement of a court order. This would constitute an infringement of the right to privacy. The web hosting services that fail to do so will be penalized by TIB from 10.000TL (3,300 EUR) up to 100.000 TL.( 33,000 EUR).
A second issue that raises concern is the method of blocking access to content. The law makes it obligatory for the Internet Service Providers (ISP) to join a Union. The Union would be responsible for implementing decisions to block access to content. The fact that ISPs are forced to become a member and pay fees to Union is in clear conflict with the Art.33 of the Turkish Constitution on the freedom of association. The article states that no one shall be obliged to become and/or stay a member of an association. The ISPs that do not become a member of the Union shall pay administrative fees. The provision also represents a violation of article 11 of the European Convention on Human Rights on the freedom of association.
Regarding the freedom of expression, the ECtHR had in 2009 already criticized the restrictions imposed by the Law No.5651 in its judgment of Yıldırım v. Turkey. The Court found that;
“The interference resulting from the application of section 8 of Law No. 5651 did not satisfy the foreseeability requirement under the Convention and did not afford the applicant the degree of protection to which he was entitled by the rule of law in a democratic society.”
Turkey is under the obligation to implement the judgment by amending 8/5651 in accordance with the principles contained in it. Instead with the new law, the situation has been made worse. TIB now has the sole authority to block access to content on its own initiative. TIB may block access to content that includes “indecency”, prostitution, and sexual exploitation of children, thus amounting to prior state control of content. Prime Minister Recep Tayyip Erdoğan put it in clear terms:
“We take certain steps in order to avoid immoralities. They say freedom of opinion and expression. We are not blocking the Internet, we are only controlling it. Should this immorality continue?”
Regarding the restrictions that may be brought in the context of prior State control, the explanatory note of the Declaration on Freedom of Communication on the Internet adopted by the Committee of Ministers of the Council of Europe on 28 May 2003 states that;
“Although the State should by no means take broad measures to block undesirable content, exceptions must be allowed for the protection of minors.”
Accordingly, while blocking of content that covers sexual exploitation of children is in line with this principle, blocking access to content for indecency and prostitution must however is viewed as an abuse of power.
The law also replaces the prison sentence for hosting and internet service providers that do not comply with the order of blocking the access to content with a fine from 10.000 TL (3,300EUR) to 300.000 TL (100.000EUR).
Elevated penalties for the hosting and internet service providers and the mandatory membership fees for the ISPs will certainly be reflected on the prices the users pay for these services. This situation is not compatible with the principle of network neutrality. Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet is as follows:
Aware of the public service value of the Internet, understood as people’s significant reliance on the Internet as an essential tool for their everyday activities (communication, information, knowledge, commercial transactions) and the resulting legitimate expectation that Internet services be accessible and affordable, secure, reliable and ongoing;
Member states should develop […] strategies which promote affordable access to ICT infrastructure, including the Internet
Another source of concern about the law was pointed out in the judgment Yıldırım v. Turkey which criticized the broad nature of the law:
“[Even though] the notion of “publication” appears to be very broad and may cover all kinds of data published on the Internet…”
The new law did not change the definition of “publication” leaving the problem unsolved. The law includes other broad terms such as indecency and the secrecy of the private life without specifying the limits of the restrictions.
The new law, instead of complying with the judgment of ECtHR, added a new article 9/A, titled “Blocking the access to the content for the reasons of the secrecy of private life”. Thus, real and legal persons who claim to have the secrecy of their private life violated, will be able to ask TİB to immediately shut down the site. A mere allegation of violation of privacy will be sufficient to block access to content by an administrative authority without a court order.
TİB, upon receipt of the complaint from persons who claim to have the secrecy of their private life violated, will convey the demand to block access to the content to the newly established Internet Service Providers Union and the Union will shut down the site in four hours as an interim measure until the decision is finalized. The demand will then be conveyed to the Magistrate Judge within 24 hours and the Judge will have to rule on the matter within 48 hours. This mentality of “block first, decide later” endangers the governing principles of the Internet and freedom of expression.
Furthermore, in cases where TİB considers that there is a delay with harmful effects, it can ipso facto decide to shut down the site without any request from real or legal persons.
The court proceedings do not constitute effective remedy against the decision to block access to content due to the fact that no hearing is foreseen by the law and the views of the interested party are not obtained by the Magistrate Judge. Thus the conditions of a fair trial are not fulfilled. The decision to block access to a web site should be given by the court which should carefully examines the evidence and hear all the relevant stakeholders. A similar view was presented by the European Court of Human Rights in the Yıldırım v. Turkey (2009) judgment. Regarding the decision of the Denizli Criminal Court of First Instance to block access to the entire web site, the ECtHR asserted that the Denizli Court “merely referred to a recommendation from TİB, without ascertaining whether a less far-reaching measure could have been taken”.
One must underline the fact that blocking access to content is one of the more common measures. Law No.5651 states that persons claiming to have their right violated may ask the hosting service provider and/or the content provider to remove the content. They are obliged by law to respond within 24 hours. Another option provided by law is that the persons claiming to have their right violated may refer directly to the Magistrate Judge. Despite the availability of these avenues Art.9/A could still facilitate the easy blocking of access to content at such levels that the less restrictive measures will lose their importance and effectiveness, thus leading to a highly controlled internet. Additionally Art.9/A is clearly in conflict with the recommendations made by UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue in his report states;
“The Special Rapporteur is deeply concerned by increasingly sophisticated blocking or filtering mechanisms used by States for censorship. The lack of transparency surrounding these measures also makes it difficult to ascertain whether blocking or filtering is really necessary for the purported aims put forward by the States”
It is a matter of concern that Art.9/A leaves wide and discretionary decision-making powers to TİB, a bureaucratic state institution, which at most, should only be charged with the implementation of a decision by the court. The independence of TİB was an object of debate in the past. In 2009, the appointment of TİB’s Director by the Prime Minister was found unconstitutional by the Constitutional Court. Today the Director is appointed by the joint decree of Prime Minister, the Minister for Transport and Communication and the President of the Turkish Republic. As such TİB still remains under the control of the Prime Minister. The UN Special Rapporteur; Frank la Rue states that;
“Moreover, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.”
TIB as such is a part of the executive branch. Together with the fact that TİB Director is appointed with a joint decree by the executive branch, it is safe to say that TİB is not independent of political influence. Moreover it is not a simple body which applies the decision of restricting the right to freedom of expression but with the new law it becomes the decision-maker itself with judicial powers. The decision to restrict access to content should be made by a judicial body and not by an administrative body.
In conclusion, the new law does not contain adequate safeguards against arbitrary interferences of the executive into the freedom of expression and communication, carrying heavy risks of right to privacy violations.