Evaluating the Regulation of Access to Online Content in Turkey in the Context of Freedom of Speech

AuthorBatu Kinikoglu
PositionVU University Amsterdam Senior Counsel, BTS & Partners
Pages36-55
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Batu Kinikoglu
VU University Amsterdam
Senior Counsel – BTS & Partners
batu.kinikoglu@bts-legal.com
Abstract: This paper aims to critically examine internet access regime in Turkey
within the framework of freedom of speech set by international human rights agreements.
The enactment of the Law No. 5651 in 2007 led to strict regulation over access to online
content. The current situation in Turkey is marked by a ge neral blocking mechanism, a non-
transparent filtering mechanism and signi ficant role ascribed to administrative bodies in
blocking and filtering decisions. By tracing internet access regime in Turkey historically
and discussing the general relationship between internet access regulation and international
human rights agreements, the paper addresses the ways in which the internet access regime
in Turkey violates the right to freedom of speech. In the lig ht of this assessment, the paper
concludes with nine-steps that can be taken to meet the require ments of international human
rights agreements.
1. Introduction
There are over 20.000 blocked websites in Turkey, over 4.000 of which have been blocked in 2012.
1
These numbers constitute a mirror image of the inter net access regime in Turkey, which has caused a
series of protests in the Turkish society. On 17
th
of July 2010, thousands marched against the blocking
mechanism designated in Law numbered 5651 on the Regulation of Publications on the Internet and
Suppression of Crimes Committed by means of Such Publications (Law No. 565 1), i.e. the first Law
regulating internet access in Turkey.
2
Likewise, simultaneous protest marches in 31 cities o f Turkey took
place on 15
th
of May 2011, just after the Information Technologies and Communications Authority
(ITCA) of Turkey announced the new filtering mechanism.
3
The contemporary situation in Turkey raises concerns that Turkey’s internet access regime diverts
from the basic principles of the international human r ights agreements that Turkey is a party of, especially
the Universa l Declaration of Human Rights (UDHR), and the Convention for the Protection of Human
Rights and Fundamental Freedoms ( European Convention on Human Rights; ECHR). These co ncerns are
not groundless. T he two mechanisms used in Turkey, the blocking and the filtering mechanisms, are
intervening in the right to the freedom of speech of individ uals. The general blocking regime in Turkey
results in a massive amount of over-blocking, while both blocking a nd filtering mechanisms fail to be
transparent and responsive to the public. More than that, the content of the websites that are filtered or
blocked and the heightened role of the administrative bo dies in decisions regarding what is to be blocked
or filtered is equally problematic.
It is at this time of u nrest that this paper aims to offer an evaluation of the current regulation of access
to online conte nt in Turkey in the context of freedom of speech. This assessment entails a description of
1
According to unofficial statistics of EngelliWeb, a voluntary project in Turkey that lists blocked websites in Turkey.
For more information, please see, http://engelliweb.com/istatistikler/ (in Turkish).
2
“Sansure Karsi Yuruyus” (“March against Censorship”). For more information, please see,
http://www.sansurekarsiyuruyus.com (in Turkish).
3
http://www.sansuresansur.org/internetin-icin-yuru/ (in Turkish).
E
valuating the Regulation of Access to Online Content in Turkey in th e Context of Freedom of Speech
37
the internet access regulation in T urkey with a historical perspective; a discussion of t he general
relationship between internet access regulation a nd the human rights regime; and an analysis of the
contemporary regime in Turkey in the light of the freedom of speech regime. In due course, the paper is
divided into three main secti ons. The first section will give a historical account of the internet access
regime in Turkey before and after Law No. 565 1. The second part will offer a wider discussion on
internet access re gulation and the freedom of speech regime designated in the international human r ights
agreements. In the most comprehensive last chapter, the Turkish case will be situated in the international
human rights arena through an anal ysis of whether Turkey respects the international human rights
agreements and what should Turkey change in order to respect these agree ments.
2. Regulation of Access to Online Content in Turkey
2.1 Attempts to Regulate the Internet and Blocking of Websites before Law No. 5651
Before Law No. 5651 was enacted in 2007, there was no specific law governing int ernet access in
Turkey. Yet, the attempts to regulate the inter net in Turkey date back to 2001. At that t ime, it was thought
that the already-existing laws, such as the Turkish Criminal Law and the Press Law, could be used for
regulating access to online c ontent and the crimes co mmitted on the internet.
4
The reason behind this
approach could be that the internet was not regarded as a distinct aspect o f social life in Turkey. Instead, it
was considered as a branch and a continuation of the traditional mass media, which could be governed b y
already-existing regulatory mechanisms.
Using existing laws for internet-related cri mes inevitably had unfortunate consequences especiall y in
terms of criminal law. Fo r example, in 1999, Coskun Ak, a forum moderator working for an internet
service provider called Superonline, was sued for a forum message posted by an anonymou s user. This
message allegedl y insulted the Turkish Republic, the military, the police , and the courts of law.
5
In the
criminal charges against Ak,
6
the public prosecutor admitted that t here is no regulation for the cri mes
committed on the internet. Nevertheless, he stated that Ak’s position was similar to an editor of a
newspaper, which made him responsible for what the anonymous user had posted on th e forum. In the
case, the court sentenced Ak to 40 months of prison for the alleged insults.
7
Needless to say, this d ecision
was against one of the basic principles of criminal law in continental Europe, nullum crimen nulla poena
sine lege, i.e. there can be no crime or punishment without law. Fortunately, after a series of trials in the
High Criminal Court, the Supreme Court, and the Plenary of Criminal Chambers of the Supreme Court,
Ak was found to be innocent. However, his innocence was not based on the fact that there was no
legislation covering his position as an internet forum moderator, but based on the fac t that what was
written on the forum was fou nd to be within the scope of freedom of speech. Fortu nately, the case did not
end up with an unfortu nate conviction and the decision was given with reference to freedom of speech.
Yet, the Coskun Ak case signifies two important points. First, the importance of defining the actors on the
internet (e.g. content provider and hosti ng provider) became visible. Second, it indicated how dangerous
it might be to apply the existing non-internet related laws to crimes committed on the internet. This case
was one of the first, signifying the need to regulate the internet.
At first, there were several attempts to regulate the crimes committed on the internet by simply adding
specific provisions to the existing laws. In 2002, a provision has been added to the Press Law, which
stated that provisions in this Law about compensations arising fro m insults are applicable to insults made
on the internet.
8
Yet later it beca me apparent that the intern et differs from the traditional press in many
ways including diversified positions and new actors which cannot be found in conventional mass media.
Since the Press Law did not define the internet and its actors, this provision about the internet could not
4
Y Akdeniz and K Altinparmak, Internet: Restricted Access, A Critical Assessment of Internet Content Regulation
and Censorship in Turkey (2008), p.3.
5
For more information on the case, please see, B Gunaydin, Internet Yayinciligi ve Ifade Ozgurlugu (2010), pp.139-
153.
6
Istanbul Chief Public Prosecutor’s Office, Press Bureau, Main No.1999/280, Accusation No.1999/348, d ated
28.07.1999.
7
Istanbul 4
th
High Criminal Court, Main No.1999/225, Decision No.2001/56, dated 27.03.2001.
8
Press Law numbered 5680, Additional Art. 9.

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