AYŞEN GÜVEN/SUMRU TAMER
There are ongoing deliberations in the Grand National Assembly of Turkey regarding ‘regulation of social media’, an issue which has been raised by the government at certain intervals. Specialists in this area, have been announcing for months that the proposed regulations, once enacted, will further strengthen the existing censorship on the Internet.
The AKP (Justice and Development Party) government’s proposal, initially raised in April at the same time as an omnibus law which included measures concerning the novel Coronavirus (Covid-19) outbreak and which was viewed as being ‘in fact, designed to get the social media under control’, is once again on the table after several months. The regulations which President Recep Tayyip Erdogan slowly warmed up to the public through statements delivered a month ago, were drafted by the AKP.
We asked specialists in the field about the scope of the regulations which concern millions of Facebook, Twitter and Instagram users; the differences between the version that is currently being deliberated in Parliament and a version that was announced earlier; the similarities and differences between the proposed regulation and the German example; as well as the outlook regarding the digital environment.
First of all, Prof. Dr. Yaman Akdeniz from Bilgi University’s Faculty of Law reminds us that there is already a restrictive regulation in place in Turkey.
“It would be important to remember that as of the end of 2019, access to 408,000 websites, 130,000 URLs, 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube videos and 6,200 Facebook content has been blocked within the existing system. The bill, which is submitted on 24th of July to Parliament, builds on the restrictive structure’’, says Akdeniz referring to their EngelliWeb report which had been published by the Freedom of Expression Association (IFOD).
‘IT IS NOT LIKE THE ONE IN GERMANY, THIS REGULATION ALSO COVERS ALL CONTENT PROVIDERS, CIVIL SOCIETY AND NEWS WEBSITES.’
“Government officials say ‘Germany has regulations, why shouldn’t Turkey have one?’ Yet, when we take a closer look at the system in Germany, we see quite a different structure. There, it is possible to request that certain content be removed from social media platforms within the framework of a law that concerns citizens. In our case, the regulation has a broader scope than just social media platforms, it also covers all content providers, civil society and news websites. As you know, in the past, Twitter, YouTube, Wikipedia, and news websites including Sendika.Org, Siyasi Haber, Yüksekova Güncel have been blocked. The procedures regarding the applications to the Constitutional Court in connection with these cases lasted around 5 years. -Of course we tend to forget that easily- The news websites including Odatv, Independent Turkish, Jin News and Özgürüz.org are still blocked from users in Turkey. The applications filed with the Constitutional Court regarding these have not been finalized and will likely last 3-5 years.’’
‘THE GOVERNMENT WILL BE ABLE TO HAVE NEWS ARTICLES REGARDING CORRUPTION AND IRREGULARITIES REMOVED ALTOGETHER’
“For instance, it includes an amendment that will seriously impact freedom of expression and the press’’ – while the Criminal Courts of Peace can issue blocking orders with regard to content such as ‘violation of personal rights and insult’ in the existing system, they will be able to order that the content be removed from publication after the new regulations take effect. This will mean that, not only will articles published in previous years on news websites, for instance, on Susma24 Platform -their archive-, be blocked but it will also be possible to have these articles removed from the website or removed from the internet entirely. Therefore, it will be possible for the government to have articles regarding corruption or irregularities that expose its political past removed entirely. For instance, when we search past news articles, we will not be able to find any articles regarding 17-25 December (corruption investigations in 2013) or we won’t be able to find anything other than one-sided articles published in pro-government news websites. That is the first dimension of the draft bill which has been submitted to Parliament,” summarizes Yaman Akdeniz, warning that “while it may seem that the new draft bill is introducing some cosmetic changes, those changes will seriously impact freedom of expression.”
‘SOCIAL MEDIA PLATFORMS WILL NOT BE BLOCKED ALTOGETHER BUT IT WILL BE PRACTICALLY IMPOSSIBLE TO USE THEM IN TURKEY’
Explaining that the second dimension of the draft law is to introduce a structure that aims to force social media networks to have a representative office in Turkey, Akdeniz says that those who do not do this will face significant fines and “They will have to have a representative office in Turkey, otherwise they will be facing fines up to a total of 40 million TL,” adds Akdeniz. He also states that companies will be banned from publishing advertisements and placing advertisements in Turkey. Yet, Akdeniz points to what he thinks is an even more troubling situation than the possibility of fines being imposed:
“Social network provider’s bandwidth for internet traffic, will be blocked by being reduced first by 50% and then 90%. Therefore, we will not be facing a complete blockage but these platforms will become practically unusable in Turkey. For instance, you are going to tweet or try to look at a YouTube video but the video will not upload no matter how hard you try. So, we won’t be able to view videos or tweet nor will be able to get new tweets on our feed.”
‘THEY WILL HAVE TO IMPLEMENT THE COURT DECISIONS TO BLOCK CAN DÜNDAR AND BARBAROS ŞANSAL’S ACCOUNTS’
“They will have to implement the decisions of the Criminal Court of Peace that are communicated to them’’, warns Prof. Akdeniz, referring to additional sanctions for such platforms should they move to Turkey. Akdeniz illustrates his points with some examples:
“One day, when companies are notified of a decision to close, for instance, Susma24 Platform’s Twitter account, they will have to implement it. For instance, the decisions to block access to Can Dündar and Barbaros Şansal’s accounts are currently not implemented by Twitter as they are contrary to its internal policy. However, if they were to open an office in Turkey and were obliged to have a legal representative in the country, they would have to implement all these decisions. The draft bill says that if they fail to do so ‘they will be liable to indemnify against any losses incurred.’ Therefore, they will face many lawsuits and will have to deal with those lawsuits.
Moreover, they will become direct counterparts for the users. This may not seem to be problematic on first consideration. The companies will be liable to accept or reject the requests they will receive from the users in 48 hours. This will require a significant infrastructure to be set up by the companies. Let us assume for a moment that they have put such an infrastructure in place. Then, the users whose requests are rejected by the company will apply to the Criminal Courts of Peace anyway. This will force them to implement the decisions that will be notified to them at this second stage.’’
A RISK FOR ANONYMOUS ACCOUNTS
Pointing to another risk regarding the proposal, Yaman Akdeniz explains that the draft law has a provision under which the providers will have to keep users’ personal data in Turkey. Akdeniz argues that this will allow authorities, not only the judiciary but also others including the Information and Communication Technologies Authority to access the users’ data. “Even if this part were to be taken out of the proposal as long as they have legal representation in Turkey it will be possible for these actors to access the users’ data. What do you think this would mean? It will make it possible for them to identify the names behind anonymous accounts or those we call egghead or parody accounts. Moreover, the cold and threatening climate which will emerge as a result, will make it possible to launch a criminal investigation or file criminal proceedings against many individuals,” Akdeniz explains.
‘REJECT THE PROPOSAL CATEGORICALLY!’
Prof. Dr. Yaman Akdeniz, sends out a message to social media platforms and opposition parties: “Reject this proposal categorically! Meaning, reject it without further discussion regarding its content. Reject it, because there is no beneficial provision in it, nor is there anything that is good in it. Therefore, it must be rejected without further discussion regarding its content. If social media platforms were to come to Turkey and accept the system in Turkey, then they would be a part of Turkey’s judicial system and significantly undermine Turkey’s democratization.’’
‘PLATFORMS ARE EXPECTED TO BE THE LEGAL REPRESENTATIVES OF CENSORSHIP’
Şevket Uyanık from the Common Knowledge and Communication Association and the Pirate Party movement, explains that the foundations of Law no. 5651 were laid in 2007, that the law itself was enacted in 2014 and that there are efforts to patch up the law. Expressing that the law in question includes several articles that go against the constitution and the freedom of expression, Uyanık says that “it is fair to argue that enactment of this law will spell the end of the Internet in Turkey.”
Uyanık, continues his assessment as follows:
“The proposal includes an article regarding removal of content and blocking. Before the Law of 2014, it was said that URLs would be blocked and not content, which has not been the case. Many news outlets, media organizations and personal accounts were completely blocked. Wikipedia remained blocked for 2.5 years in this country. Therefore, it is fair to presume that there are much worse days ahead of us. And then, there is the issue of representation. In fact these platforms had representatives whom CSOs meet and they had a title like public policy director. Now, the platforms are asked to open an official representative office and frankly they are expected to be the representatives of censorship.”
‘WE WILL BE EVEN MORE BLACKLISTED’’
Conveying that, in the Pirate Party movement, they have been struggling to find a solution to these issues since 2011 and were the first to call out what the actual intent was of the process back in 2014, Uyanık highlights the importance at this point of knowing the background:
“Back then, we said that the end of the Internet was near and now they have pushed it even further. And now what? We will face even more restrictions, the web will be even more censored and another important aspect is that we will be even more blacklisted, there will be more investigations. Because, it is possible that data may be localized. The proposal includes a provision that will force US social media companies such as Twitter and Facebook to keep their users’ data in Turkey. So, Criminal Courts of Peace or the law enforcement will easily access user data. One could say that this is a troubling situation in terms of surveillance.”
‘GERMANY IS A COUNTRY THAT IMPLEMENTS FUNDAMENTAL RIGHTS AND FREEDOMS, TURKEY IS NOT’
Uyanık says that it would be wrong to narrow the discussion down to “Netflix must not be blocked” and that this is a “much deeper issue which goes against the constitution and the freedom of expression and is one that has much more fundamental problems. We should be considering it in this framework. On the other hand, comparisons are made with Germany. But there is no similarity whatsoever. Because we are talking about two entirely different countries. Germany is a country where fundamental rights and freedoms are fully defined and exercised, but Turkey is not. Besides, there is a debate on the ‘right to be forgotten’ and that also is a wrong approach. ‘The right to be forgotten’ is an issue which emerged following the EU’s General Data Protection Regulation and there are two precedents regarding this in Turkey. But, what is being asked here boils down to having criticism against the government deleted from search engines and have it completely removed,’’ says Uyanık stressing the same issue Yaman Akdeniz highlights.
‘WE WILL LAUNCH DIGITAL ACTION’
Expressing their plans to further increase their action on these issues both as the Pirate Party Movement and the Common Knowledge and Communication Association, Uyanık says that they will organize digital actions with organizations including the Chamber of Computer Engineers and Alternative Informatics Association. “The Internet culture is a universal culture. It cannot be localized. Pointing to ‘public morality’ or ‘public decency’ cannot be used as an excuse for censorship. Censorship has no excuse. As we know, more than 400,000 websites are already blocked in Turkey. 100,000s of tweets and videos too. Turkey’s track record in the area of censorship has been rather bad since 2007. That’s why we must fight against this new regulation and raise our voice. We should not be simplifying it to a ‘we will set up a VPN and surf the Internet anyhow,’” says Uyanık, once again pointing to the gravity of the picture we are facing.
‘LAWFULNESS OF BTK DECISIONS AND JUDICIAL RULINGS MUST BE DISCUSSED’
Evrensel Newspaper’s Information Technologies writer İsmail Gökhan Bayram says that in 2019 tens of thousands of websites were blocked but that this number represents just those that could be identified as the process lacks ‘transparency’ and that many access blockings remain unidentified.
Stressing the existing circumstances, Bayram, discusses the proposal from the point of view of the freedom of expression: “The draft law on social media, which is before Parliament, includes practices whereby such mechanisms will be applied in social media more broadly and strongly. This law forces the social media representatives to assign representatives in Turkey. This means financial liabilities for those who assign representatives. However, this financial liability does not concern us very much, as it is between the state and the companies. The issue is about to what extent that representation will be delineating the boundaries of our freedom of expression. When looking at BTK and judicial decisions issued in recent years, if we see decisions and rulings which show signs of political influence and which are questionable from the point of view of their legality, it is obvious that development of such relations will have negative implications on our freedom of expression.”
‘THE RIGHT TO BE FORGOTTEN WILL BE USED AS A FAÇADE AND TO ERASE PAST ARTICLES’
Drawing our attention to the discussion about ‘privacy’ within the context of the new proposal, İsmail Gökhan Bayram says: “This part also raises similar censorship concerns. When does privacy prevail over the right to be informed and when does the right to be informed prevail over privacy? How do courts decide on these matters, and in whose favor? The part about privacy in the new draft bill raises the likelihood that ‘the right to be forgotten’ could be used as a façade and the articles which were news in the past could be erased. I believe that in its current form this law will not further rights and freedoms on the web, it will rather further cause a backsliding in terms of these rights and freedoms, and cause even greater censorship.’’