Turkey: Dangerous, Dystopian New Legal Amendments

(Istanbul) – Turkey’s parliament passed a swathe of new amendments known as the “censorship law” on October 13, 2022, introducing new abusive criminal speech offences that further deepen online censorship and restrict access to information, ARTICLE 19 and Human Rights Watch said today.

The timing of the legislation, months before 2023 presidential and parliamentary elections, also raises concerns that the government intends to muzzle online reporting and commentary critical of the Erdogan government in the run up to the elections. “Taken together, the new legislation represents a draconian new chapter ahead of elections in 2023 by increasing the weapons in the government’s arsenal to enforce censorship and tighten control over social media and independent online news sites,” said Sarah Clarke, Head of Europe and Central Asia at ARTICLE 19, “With severe penalties against tech companies for failure to comply with user data and content take-down requests, the law will force tech companies to be complicit with an almost total censorship regime.” The new legislation consists of 40 articles amending several laws, including the Internet Law, the Press Law, and the Turkish Penal Code. It makes “disseminating false information” a criminal offense with prison sentences of between one to three years. It establishes much tighter government control over online news websites. It equips the government-controlled Information and Communication Technologies Authority (Bilgi Teknolojileri ve İletişim Kurumu, BTK) charged with regulating the internet, with far-reaching powers to compel social media companies to comply with requests to take down online content and hand over user data or to be subject to reduction of their bandwidth – known as “internet throttling” – if they don’t comply. ARTICLE 19, Human Rights Watch, as well as other organizations, have extensively documented the widespread abuse of Turkish Penal Code and Anti-terrorism Law provisions to prosecute and convict journalists and any perceived government critic for critical reporting, statements, or commentary even though they in no way advocate violence. Under the new legislation, anyone who criticizes the government on online platforms can be prosecuted under disinformation charges. Social media is one of the last arenas where people have access to independent news and can express themselves with relative freedom after the broad crackdown on media in Turkey. This is despite Turkey’s already restrictive internet law, which includes arbitrarily blocking and removing websites and other online content. This new law seeks to close that space by forcing tech companies to become the apparatus of state censorship, ARTICLE 19 and Human Rights Watch said. In 2020, amendments to the Internet Law combined severe sanctions for not appointing a local representative – throttling of up to 90 percent of their bandwidth – with relatively mild sanctions for noncompliance with content removal requests. Tech companies opted to appoint a local representative while pledging to still protect user rights by not responding to all content removal or data requests. ARTICLE 19, Human Rights Watch, and the Freedom of Expression Association (IFOD) warned the tech companies at the time not to set up representative offices in Turkey, as given the hostile environment, this would inevitably lead to their implication in human rights abuses.

The new law builds on the 2020 law in two key respects. It formalizes the tech companies’ status in Turkey and greatly increases the extent to which they can be held criminally, administratively, and financially liable by requiring those with over 10 million daily users to set up companies, not simply representative offices or real person representatives. Second, it introduces severe sanctions against the companies for failure to comply with any content blocking or removal request or demand to hand over user data, with bandwidth reduction of up to 90 percent for noncompliance. As a result, the companies will either inevitably become implicated in human rights violations or their platforms could become inaccessible in Turkey, the groups said. “The new law tightens the Turkish government’s control over social media by subjecting tech companies like Twitter and Facebook to enormous pressure to comply with government censorship and criminal probes into users,” said Emma Sinclair-Webb, Europe and Central Asia associate director at Human Rights Watch. “With severe penalties against tech companies for noncompliance, the law effectively blackmails tech companies into abusing human rights to avoid becoming inaccessible platforms.” The Turkish government should repeal the law and end the crackdown on civil society, ARTICLE 19 and Human Rights Watch said. Turkish authorities should ensure the right to freedom of expression and free flow of information especially in the run up to and during elections.

The social media platforms should urgently clarify their position publicly so that users fully understand and can foresee the risk of using their platforms.

They should not succumb to pressure and should comply with their obligations under the UN Guiding Principles on Business and Human Rights to respect human rights, including freedom of expression and privacy.

They should resist any complicity with government censorship or reject arbitrary demands for user data that would expose their users to the risk of arrest for sharing online content that falls within the boundaries of protected speech. In a context of a pervasive disregard for freedom of expression and a pattern of prosecution and conviction for so-called “speech crimes,” compliance will make it practically impossible for the tech companies not to become implicated in human rights violations, ARTICLE 19 and Human Rights Watch said. For details about the new law, please see below. New Criminal Disinformation Offense The provision in the new law that has raised most concern in the media is the new offense of “publicly disseminating, purely with the intent to cause anxiety, fear or panic, false information about the country’s internal and external security, public order and general health in a way likely to damage the public peace.” It carries a penalty of one to three years in prison, which can be enhanced by half if the accused’s identity was concealed at the time of dissemination or the offence was committed “within the framework of activities of a [criminal] organization.” The vague and widely drawn provision, allowing prosecutors and courts already operating under strong political control to define what constitutes “false information” and “intent to cause anxiety,” is a profound threat to freedom of expression and puts everyone criticizing the government online at risk of possible arbitrary arrest and prosecution.

The Council of Europe’s expert legal body, the Venice Commission, issued an urgent opinion stating that the new criminal offense threatens freedom of expression. Content Removal The legal amendments allow the BTK to significantly affect tech company’ profits and ultimately leave the platforms unusable by applying heavy sanctions for noncompliance with administrative or court orders ordering them to remove or block content. Among the sanctions are up to six-month bans on receiving advertising, and 50 percent bandwidth reduction, which would be increased to 90 percent after 30 days for noncompliance with blocking or removal decisions. User Data and Anonymity Another far-reaching aspect of the new law is that social media platforms will have to hand over user data to prosecutors and courts if requested during investigations into users for allegedly committing crimes such as disseminating disinformation, for crimes against the state or other offenses that are well-documented as being frequently used to stifle civil society in Turkey and to target perceived government critics. If companies refuse to provide user data, prosecutors could ask an Ankara court for a penalty of up to 90 percent bandwidth reduction. Handing over user data would end social media users’ anonymity and expose them to the risk of arbitrary arrest. New Requirements for Local Representatives Most of the tech companies exploited a loophole in the 2020 amendments by appointing or establishing legal companies, which seemed to be businesses with only registered addresses, without having genuine legal connection to the main big tech companies. For example, Facebook appointed a Turkish company called Madoka, and although Twitter established a limited company in Turkey, the sole shareholder is a US-based company called T. I. Redwing LLC. With the new law, both Facebook and Twitter will be obliged to establish companies that will be financially, administratively, and criminally liable, and can be inspected. If companies do not establish the required legal entity within six months, they will face advertisement bans and throttling up to 90 percent. Regulation of Social Messaging Apps The new law also increases the scope of the Electronic Communications Law to regulate so-called over the top (OTT) internet video and audio messaging and calling services. OTT services such as WhatsApp, Signal, and Telegram will have to set up companies in Turkey to be officially listed in a government register and to provide periodic information about information such as numbers of active users and voice and video calls, and instant messages. Noncompliance will result in similar sanctions or fines up to 30 million Turkish Lira (US$1,615,000), 95 percent internet bandwidth throttling, or completely blocking access. Sanctions for Tech Companies The new law also introduces an administrative fine of up to 3 percent of the global turnover in the previous year if social media companies do not comply with provisions including providing information to Turkish authorities on information systems, algorithms, data processing mechanisms, and commercial approach. BTK’s president will have the sole authority to issue this fine. Information and Communication Authority’s Draconian New Powers The vast new powers granted to the BTK and its president are particularly alarming considering that there is little judicial oversight of the Authority’s decisions and the body lacks independence.

The Authority operates under the Transport Ministry, and while it is nominally independent, its president and members are appointed by President Recep Tayyip Erdoğan. An August media investigation provided credible evidence that the Authority had been collecting private user data and spying on users in Turkey for over a year. Regulation of Online News Sites Another key objective of the law is to regulate online news sites by making the Press Law applicable to them. This includes extending press card requirements to journalists working for internet news sites, restructuring how such press cards are issued and some concerning new provisions for cancelling press cards if “media ethics are violated” without the possibility of reapplying for long periods.

The law requires online news sites to include contact information on their main page so that they can be served with legal notifications such as court summonses electronically; and the obligation to store online content for two years. Among the most problematic elements is the obligation to comply with demands to run corrections on the front page for a week if there is a takedown order.

The changes raise concerns that monitoring of online news sites will greatly increase and the authorities are equipping themselves with new tools for constant interference by way of legal action and enforcement of correction notices. New Responsibility to Report on Content The law also introduces a new obligation for social media companies to report content that “endangers the security of life and property” of others, if companies become aware of this content.

They would have to provide information about the user who created the content, undermining online anonymity.

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References:

• http://www.hrw.org/europecentral-asia/turkey
• https://www.article19.org/wp-content/uploads/2019/07/Turkey-UPR-submission_July2019.pdf
• https://ifade.org.tr/reports/EngelliWeb_2020_Eng.pdf
• https://www.article19.org/resources/turkey-youtube-precedent-threatens-free-expression/
• https://www.hrw.org/about/people/emma-sinclair-webb
• https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2022)032-e
• https://internet.btk.gov.tr/sosyal-ag-temsilci-rehberi/
• https://globalvoices.org/2022/08/05/under-btks-eye-investigation-reveals-turkeys-information-and-communication-authority-has-been-collecting-private-user-data-for-over-a-year/