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CENSORSHIP IS THE NEW TREND AND TURKEY MAY BE ITS LATEST VICTIM

Introduction

154. That is Turkey’s rank on the 2020 World Press Freedom Index carried out by Reporters Without Borders. This list ranks around 180 countries, among which the Democratic Republic of North Korea (DPRK) unsurprisingly finishes last. What is surprising, however, is the fact that the Republic of Turkey ranks even behind infamously opaque countries like Pakistan, Sierra Leone, South Sudan, just to name a few. This is the same Turkey which has, for many years now, tried (and failed) to gain membership to the prestigious and exclusive European Union, which is one of the supposed bastions of liberty and freedom in the New World, and the champion of free thought. We call attention to this statistic to contextualise what Turkey has quickly become under the tenuous leadership of its President, Recep Tayyip Erdogan. From a controversial and possibly rigged referendum that gave Erdogan substantial authority and power in 2017, to criticised involvement in international conflict (like the Syrian Civil War), to locking up hundreds of outspoken journalists and media-persons (who constitute of a third of the world’s imprisoned reporters, according to some estimates), Turkey today is closer to an authoritarian and dictatorial state than would have been expected, prior to 2010.

As if these brazen steps towards the far right weren’t enough, at the end of July 2020, the government in Ankara took yet another leap towards the eradication of free speech. While the world was busy battling the COVID-19 pandemic, Erdogan rushed a new Bill through the Parliament which sought to severely limit the agency of social media, in a move that left human rights agencies around the world shocked and scrambling.

This article begins by tracing the treacherous path Turkey has taken towards totalitarianism, leading to the draconian “Internet law,” which is introduced later. It further spotlights and analyses the provisions of the impugned legislation that constitute egregious attacks on the freedom of speech and expression - a basic right constitutionally guaranteed to citizens of Turkey. The author concludes by briefly opining on the path ahead.

How Turkey Got Here

In a decade, where much of the modern world took strides towards accepting populism as a new form of life, Turkey was certainly not left behind. This vigorous, if not flawed, parliamentary Turkish Republic founded in 1923 by Kemal Ataturk, granted millions of Turkish citizens wide-ranging rights and freedoms, but fundamentally changed its approach in 2017. The 2017 referendum gave the Erdogan Presidency sweeping and all-encompassing powers akin to a model that is followed in Kazakhstan or the Russian Federation. Since then, the Turkish people have had to endure an increasingly intolerant and violent regime. Erdogan has used, as many demagogues do, a failed coup attempt against him to justify any and all of his certainly disproportionate crackdowns. However, he did not limit himself to jailing and arbitrarily arresting members of the Opposition parties (and chasing the leader of the Opposition movement – Fetullah Gulen – literally out of the country), but further proceeded to lock up many academics, intellectuals, journalists and writers.

According to a report, more than 70% of the media houses are directly or indirectly owned either by the government, or by its beneficiaries and proponents. Of the top 10 news networks in Turkey, only one channel, which is Fox TV is owned by the Walt Disney company and can be considered truly free and impartial. It is thus relied upon by many, for bipartisan news. A deadly combination of arresting and prosecuting anyone who wants to hold the executive accountable, while simultaneously purchasing all the sources of public information certainly warrants Turkey’s dismal position in the World Press Freedom Index. Appallingly, even during the pandemic , institutionalised assault on free thought continued. According to a campaign article by Amnesty International, even criticising the government’s handling of the COVID-19 pandemic via pertinent questions such as usage of public money, increasing deaths, or inadequate response can attract stiff penalties. While detentions, statement recantations, and police raids were common sight, even prison sentences joined the list of free handouts.

All this tells us about the sorry state of the fourth estate in Turkey. It begs the question, where does the populace turn to when it can no longer trust the media? The answer is obvious – to digital, or social media. We don’t have to look further than India to understand that when conventional sources of information disappoint their consumers, having shed all veils of political impartiality and fairness, social media or ‘digital’ activism takes the front seat. Similarly, in Turkey, social media is the final agency that citizens can exploit, which can be used firstly, to educate themselves and gather information from neutral sources, and secondly, use non-partisan information to hold their elected governments accountable. However, Erdogan's government has now, in one swift move, greatly tightened its grip on digital media as well.

The “Sultan Of Censorship

What has been touted as a move aimed at protecting users as opposed to curtailing their rights, was supposedly modelled after Germany's Network Enforcement Act on combating hate speech online (which itself is under a lot of flak), and has sparked outrage around the world. As is typical of the Erdogan government, blatant restrictions on freedom of speech and expression are being guised under the narrative of “protecting the citizens,” and “curtailing disinformation.”

However, a quick look at Turkey’s track record of oppression reveals the true intentions behind this law. Turkey had the highest number of removal requests from Twitter in the first half of 2019: a whopping 6000+. According to an analysis by Mr. Akdeniz, whose organization, the Freedom of Expression Association, compiles an annual report on internet access in the country, last year more than 130,000 web addresses were blocked; 40,000 posts on Twitter taken down; 10,000 YouTube videos removed; and 6,200 Facebook posts scrubbed from the site. Even the United Nations High Commissioner for Human Rights warned that the law “would give the state powerful tools for asserting even more control over the media landscape.”

Controversial Provisions

On the 29th of July, 2020, the Turkish Parliament voted and agreed to pass the proposed Law No. 7253 which suggested amendments on the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of such Publications w. no 5651 ("the Internet Law"). The amendment has been published in the Official Gazette on the 31st of July, 2020 and will come into effect from 1st October, 2020.

Critics around the world have hailed this legislation as another in a long line of defeats for freedom of expression in Turkey. The following are some of the most disputed and controversial of its provisions –

· Defining “social network provider” – Under Article 1 (S) of the law, social network provider (SNP) is defined as a natural or legal person who enables users to create, view or share texts, images, voice, location or other types of data for the purpose of social interaction. With the new "social network provider" definition, the Internet Law sets forth specific obligations to social network providers.

Whether consciously or not, the term social network provider has been too broadly defined, in so far so that even in-game or live chats can come under its purview. This move was ostensibly undertaken to make the legislation air-tight and to ensure that, in the future, no social media application would be able to escape lawsuits, merely on technical grounds.

· Appointing Representatives – According to Article 6 (1) of the amendment to the Internet law, social network providers which have a daily traffic of more than 1,000,000 persons from Turkey are mandated to appoint a representative within the confines of Turkey’s borders. Here, it is important to note that this requirement of traffic is not confined to unique visitors, even the same person using the same SNP repeatedly would count towards qualifying this criterion.

This representative must be a Turkish citizen and must be able to entertain and process any and all requests made by the Turkish government. In case of non-conformity to this clause laid out under Article 6 (2) of the legislation, there are provisions for a 5-tier sanction, the nature of which is dependent on the period of violation. These punitive measures range from exemplary pecuniary measures, to restricting advertising, to finally bandwidth throttling. These severe restrictions all but ensure the total compliance of SNPs with Turkey’s demands, however arbitrary they may seem. The exponentially increasing nature of the penalties will give SNPs an incentive to comply with the regime’s demands from the start, thus further limiting or totally eliminating possible push-back. Moreover, they set a dangerous precedent. Notice how the final penalty is limiting bandwidth (or, intentionally slowing the internet speed) up to 90%. This effectively renders the particular platform useless. The SNP would be totally banned from Turkey in all but name. Bandwidth throttling has thus far been a tool for oppressive governments to silently disable dissent. Now, Turkey has impetuously given this treacherous tool legal sanction. The possibly of other third-world regimes following Turkey’s lead is dauntingly real.

· Responding to Requests/Court Orders – Aside from submitting semi-annual reports on their compliance in accordance with the provisions of this legislation, SNPs have to adhere to strict norms regarding response to individual requests or court orders.

SNPs are provided with a 48-hour period to respond to individual requests, failing which a fine of 5 million Turkish Liras might be imposed. These individual requests pertain to content removal on the grounds of personal rights or right to privacy regulations. If, at all, the SNP chooses to deny the request, reasons must be provided under the ambit of the legislation (as per Article 6 (3)).

Additionally, social network providers will be held responsible for the damages arising from the failure to remove or block access to content, deemed unlawful by a judge or court order, within 24 hours of the notice/ notification. Unlike the regulations above, this obligation will be applied to all social network providers regardless of the number of accesses.

We can surmise the regime’s policies are malignant by their sheer mercilessness. Aside from the dedicated staff that will be required to deal with such burdensome requests, these time periods still might not be enough for SNPs. Combine this with the fact that fine notifications are assumed to be communicated after five days, a truncated time period by any estimate, and the ruthless inclinations of Erdogan are revealed. (under Article 2)

· Data Localization – One of the most alarming changes introduced by this legislation is that pursuant to Article 6 (5), it mandates foreign and domestic social network providers to take all necessary measures to “host the data of Turkey-based users within Turkey.”

Today, there exists a worldwide concern over the fact that governments are turning or attempting to turn their countries into surveillance states. In such a situation, this categorical and non-negotiable demand by the Turkish government does little to comfort the qualms people who already feel that their every step is being monitored. Access to all this private data, that citizens may not want the government to have, can signal harmful consequences. The Congressional Committee Hearing of Facebook in the United States in 2018 provides a useful illustration. It served as a wake-up call to democracies worldwide, reminding them of the startling omnipresence of social media. And how the seemingly congenial online platforms could be used to interfere in elections and swing the vote in one or another party’s favour. The possibilities of data manipulation for political gain in a country with as troubled a record as that of Turkey, are limitless.

Conclusion

Social media, which has been used to great effect in Tunisia, South Sudan, and Egypt, to wrestle back democracy and freedom from autocratic governments, and which is most assuredly the last tool in the arsenal of would-be Turkish activists, has been systematically restricted and practically silenced by Erdogan. Social media giants like Facebook, YouTube, Twitter, are now faced with a difficult choice. Either they can completely withdraw from a market as lucrative as Turkey, which has 50 million plus users to offer, or learn to live with the sure-to-be strenuous requests of an authoritarian regime.

The choice in this flawed dichotomy is simple: the social media giants should band together, like they have recently against Pakistan (and its similarly outrageous censorship law), and reject the stringent terms forwarded by Ankara. To illustrate, as of January, 2020, the social media penetration rate in Turkey stood at 64%.This single statistic which is bound to blossom in the coming years, is emblematic of a symbiotic relationship, which is to say that the Turkish government needs the SNPs as much as, if not substantially more, than the SNPs need the government. Only together can the so-called SNPs win this fight for free speech. Acceding to the unfair demands of an openly dictatorial regime is always a slippery-slope, where there is no equal footing. Thus it can be, at best, avoided altogether.


Title Image source: VPN Overview


This article has been written by Shrey Goyal. Shrey is a second-year law student, pursuing his undergraduate degree from National Law University and Judicial Academy, Assam. He considers himself exceptionally passionate about the study of law, and especially takes a keen interest in the fields of constitutional, environmental, IP, and human rights law.