by Gülden Gürsoy Ataman
The ruling party in Turkey, the Justice and Development Party (JDP) has raised moral panic in the society through using some basic fears such as child pornography (Binark 2011). This panic has resulted in restrictions on the Internet through broad, though, disproportionate and arbitrary use of existing legal measures, particularly Turkish Law No. 5651, “Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publication”. One of the most common methods of restrictions applied by this law has been “blocking”. Its enactment has led to the blocking of 3700 websites (OSCE 2010) and the number of blocked web-sites is 14907 as of August 2011 according to Engelliweb, a web-site gathering data on blocked websites.
Given this context, the main question addressed in this paper is how far are freedom of expression and the right to access to information undermined by the content based restrictions on the Internet, namely blocking in Turkey. The international human rights treaties binding for Turkey will be used as the main criteria for the assessment of the blocking measures. This paper first gives a brief overview of the legal and political background on the freedom of expression and the right to access to information with respect to Turkey by looking at her responsibilities under the international human rights law. It will also describe “the three-part cumulative test” as a tool to assess whether the implementation of laws are in line with the international human rights law. Then, it will review Turkey’s Internet Law. Finally, it will evaluate impacts of blocking. In short, this paper attempts to show that the content based restrictions on the Internet, namely blocking, in Turkey have implemented far too wide than necessary in a democratic society through nontransparent, unpredictable and disproportionate implementation of the laws.
2. Political and Legal Background on Freedom of Expression and the Right to Access to Information with respect to Turkey
A. Political Background
Restrictions on freedom of expression and right to access to information are one of the most serious human rights problems in Turkey. Freedom of expression has been extensively restricted by the JDP government. The anti-terror law and some articles of the Turkish Penal Code, such as Article 301 and Article 216, have been used to silence opposition to the government. This has resulted in abuses of human rights in the form of prosecutions and imprisonment of journalists. “New media”, having some peculiar aspects such as “interaction” and “user-generated content” and thus more space for expression, has been even more problematic for the JDP government. Therefore, the party has “trigger[ed] and fe[d] moral panic in public based on three fundamental fears…of right[-]wing policies: fear of child pornography, fear of the corrosion of the unity and integrity of family under the hegemony of father, suppression and concern created based on the “single” authority’s saying “it’s only me that know what is right” (Binark 2011). This moral panic has found its ultimate expression in Turkish Law No. 5651. The primary motivation for this law was to combat child pornography on the Internet. Then it has been extended to cover other elements such as “sexually explicit content”, “gambling” and “crimes committed against Ataturk”. “Its broad application to date has effectively restricted adults’ access to legal content” (Freedom House 2011). With this broad implementation of content-based restrictions as well as “obstacles to access” and “violations of user rights”, Turkey has been considered as one of the “partly-free” countries with respect to “the Internet and new media freedom” (Freedom House 2011).
B. Legal Background
Turkey has ratified International Covenant on Civil and Political Rights (ICCPR) and European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). These conventions protect freedom of expression and right to access to information. According to Article 19 of the ICCPR:
1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
This has been also mentioned in the Article 10 (1) of the ECHR:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Both under the Article 2 of the ICCPR and the Article 1 of the ECHR, states have obligation to guarantee that everyone within their jurisdiction enjoy the rights and freedoms delineated in these treaties. In Turkey, these obligations have given place in the Constitution. According to the Article 90 (5) of the Turkish Constitution (1982), which was amended on 22 May 2004, “International agreements duly put into effect bear the force of law”. Furthermore, “international human rights agreements have priority over conflicting national laws” (Gonenc and Esen 2007, p. 490). In addition to this, Article 26 of the Constitution also recognizes freedom of expression including the right to receive information.
It is necessary here to clarify exactly that freedom of expression and right to access to information are not without limitations. The Article 19 (3) of the ICCPR and Article 10 (2) of the ECHR set clear restrictions on the exercise of these rights by imposing “duties and responsibilities” on the related parties. In this respect, the main controversy “lies in balancing competing rights and interests in order to determine what information needs or ought to be part of the public debate and thus benefits democracy, and what information causes unallowable harm to individuals and/or society and thus should be necessarily restricted or sanctioned in a democratic society” (Voorhof and Cannie 2010, p. 408). The aforementioned articles of the ICCPR and the ECHR have set out the certain principles to adjust the tension between competing rights and interests, namely the criteria entitled “three-part cumulative test”. According to these criteria, any restriction should be prescribed by law (“principles of predictability and transparency”), aim at protecting the interests or values stated in the related articles of the ICCPR and the ECHR such as national security and public safety (“principle of legitimacy”) and be necessary in a democratic society and proven to be the least restrictive means required to achieve the purported aim (“principles of necessity and proportionality”). According to the international and European human rights law, namely the ICCPR and the ECHR, any restriction which fails to pass this test will not be permissible.
Frank La Rue, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, suggests that “three part cumulative test” and the specific nature of the Internet should be taken into account in the implementation of restrictions. “Joint Declaration on Freedom of Expression and Internet” has highlighted this view, stating that “tailored approaches should be developed for responding to illegal content while recognizing that no special content restrictions should be established for material disseminated over the Internet” (OSCE 2011).
3. The Impacts of Turkish Internet Policies on Freedom of Expression and the Right to Access to Information
Law No. 5651 came into force in 2007. “This law aims to combat certain online crimes and regulates procedures regarding such crimes committed on the Internet through content, hosting, and access providers” (OSCE 2010, p.6). This has been followed by additional by-laws based on Article 11(1) of Law No. 5651: “Regulations Governing the Access and Hosting Providers”, “Regulations Governing the Mass Use Providers” and “Regulations Governing the Internet Publications”. These by-laws have further clarified some important elements and modus operandi with respect to implementation of Law No. 5651.
The principal and centralized organ for the implementation of Law No. 5651 has been the Telecommunications Communication Presidency (TIB) which was founded in 2005. TIB is “responsible for executing blocking orders issued by the courts, and has been given authority to issue administrative blocking orders with regards to certain Internet content hosted in Turkey, and with regards to websites hosted abroad in terms of crimes listed in Article 8” (OSCE 2010, p.4). In addition to these, main responsibility of TIB under Law No. 2559, Law No. 2803 and 2937 is to implement the detection and interception of communication realized through telecommunications and the assessment and recording of signal information in a centralized way. TIB is directly connected with the “Information Technologies and Communication Institution” (BTK) which is an “independent authority” to regulate and monitor telecommunication sector under Law No. 2813 and which is also affiliated with the Ministry of Transportation (MoT). The decision making body of the BTK consists of seven members which are appointed by the Cabinet. Four members of this organ, including the President, are nominated by the MoT. This condition, namely procedures related to the nomination and appointment of members of the BTK, raises some questions about the impartiality of the BTK and consequently the TIB which is under its authority.
Blocking as a measure has been used widely by states in order to block access to different websites which are considered to include “illegal” and/or “harmful” content. This measure is often opted for as many states see it if as a “faster, easier and a more convenient solution” to combat with the illegal and/or harmful content in question, especially when it is not within their jurisdiction (OSCE 2011, p.2)
i. Turkish Policy
“The blocking measures” on the Internet in Turkey have been set by Article 8 (1) of the Law No. 5651. According to this article “access to websites are subject to blocking if there is sufficient suspicion that certain crimes are being committed on a particular website” (OSCE 2010, p. 8). There are eight crimes which are covered by Article 8: “encouragement of and incitement to suicide, sexual exploitation and abuse of children, facilitation of the use of drugs, provision of substances dangerous to health, obscenity, gambling, and crimes committed against Atatürk”. Internet-based games of chance are also covered by this article. If the website having a content defined by Article 8 is hosted in Turkey, a take-down order could be given; but if it is hosted in another country, blocking and filtering through Internet access and service providers could be implemented (OSCE 2011, p. 165).
Under Law 5651, both the courts of law and the TIB can pronounce, respectively, judicial and administrative blocking orders. Their reasons for blocking should be within the framework of Article 8. If the directors of hosting and access providers do not follow the blocking orders
“issued through a precautionary injunction by a public prosecutor, judge, or a court, could face criminal prosecution, and could be imprisoned between six months and two years under Article 8(10). Furthermore, Article 8(11) states that access providers who do not comply with the administrative blocking orders issued by TIB could face fines between 10,000YTL (ca. 4,735 euros) and 100,000YTL (ca. 47,350 euros). If an access provider fails to comply with an administrative blocking order within twenty-four hours of being issued an administrative fine, the Telecommunications Authority can revoke the access provider’s official license (activity certificate) to act as a service provider (OSCE 2011, p. 165)
As stated above, the implementation of Law No. 5651 has been resulted in approximately 3700 blocked websites, including access to foreign websites such as YouTube, Daily Motion and Google (OSCE 2010, p.2). Some of the news websites, supporting leftist and pro-Kurdish views such as Özgür Gündem, Azadiya Welat, Keditör and Firat News has been blocked by court orders -not necessarily based on Law No. 5651 (Freedom House, 2011). In addition to this, during 2009, online gay community websites, Gabile.com and Hadigayri were also blocked. Some of the websites such as 5Posta.org, giving place to texts related “sexuality, sexual politics and the Internet censorship” such were blocked. Some of the other blocking decisions are implemented depending on Law No. 5846 and related to intellectual property infringements (OSCE 2011)
When Article 8 blocking measures of Law 5651 – together with other blocking measures- are assessed through “the three part cumulative test”, the following defects are found:
- “Article 8 provisions do not clarify or establish what is meant by ‘sufficient suspicion’” (OSCE 2010, p.8). According to the principle of predictability, a law should be clear for everyone. The ambiguous term “sufficient suspicion”, without giving clarifications of what constitutes sufficient suspicion, contradicts the principle of predictability and transparency.
- It is reported that “197 websites were blocked by courts for reasons outside the scope of Law No. 5651… and TIB executed blocking orders…even though they do not involve catalogue crimes listed in Article 8” (OSCE 2010, p.12). According to the three-part cumulative test, a restriction should be provided by law. Although the restrictions TIB executed has been related to other laws, they have not been categorized under Article 8. This means that TIB has breached the limitations which were imposed on it by Law No. 5651.
- In some of the cases like the blocking of the Gabile and Hadigayri Websites (websites of LGBT groups), TIB did not give clear information about the reasons for blocking and did not contacted them to issue the order even though they can be easily reached as the websites has been run in Turkey (OSCE 2010, p.18-19). According to three-part test, the reason for the blocking of the website should be clear. However, without providing clear information about the reason for blocking, the execution of TIB again contradicts with the principle of transparency.
- Regarding the legitimacy of blocking decisions, it could be said that the content of Article 8 of Law No. 5651 is in accordance with two aims stated in the legitimacy principle: (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principle of legitimacy).
- Many reports reveal that blocking as a restrictive measure has been widely used in Turkey. TIB, without exhausting less restrictive measures, mostly prefers directly to block web-sites. By doing so, it fails to pass the proportionality test which suggests the use of “the least restrictive means required to achieve the purported aim”.
- Another aspect which should be taken into account is the indifference of owners or perpetrators of the blocked web-sites to challenge TIB’s decisions (OSCE 2010, p. 21). This attitude of indifference may have some consequences for democracy and the protection of human rights in society.
This paper has investigated how far the freedom of expression and the right to access to information are undermined by content-based restrictions on the Internet in Turkey. It has shown that content-based restrictions have been “too far-reaching than reasonably necessary in a democratic society” (OSCE 2010, p.29). It also suggests that lack of transparency, proportionality and accountability in the application of content-based restrictions have created gross violations with regards to Article 19 of ICCPR and Article 10 of ECHR. The study has gone some way towards enhancing our understanding of the usage of international law principles in the assessment of the extent of freedom of expression and the right to access to information in national contexts. An issue that was not addressed is an analysis of overall impacts of content-based restrictions on the Internet in Turkey. Future research should therefore concentrate on the investigation of these impacts in international, national and individual levels.
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 The OSCE Report on Freedom of Expression on the Internet in 2011 implies that the JDP government has not provide official statistics on blocking since May 2009.
 The president of TIB was appointed by the Prime Minister until the related article in Law No.5397 has been abolished by the Constitutional Court in 2009. After that, legitimacy of his holding the office has become controversial.
 The examples given in this paragraph so far can be accessed as of 21 August 2011, however this does not show that new blocking orders would not be issued.