CyberLaw Blog

A news resource for CyberLaw and Cyber-Rights issues from around the globe
June 23rd, 2013

Speech delivered by Professor Yaman Akdeniz at the Speak-Up!2 Conference

 Speech delivered by Professor Yaman Akdeniz at the Speak-Up!2 Freedom of Expression and Media in the West Balkans and Turkey Conference in Brussels, 20 June 2013.

SpeakUp138

The Internet as the largest communication network in the world is increasingly becoming indispensable for everyone around the world to take part in cultural, social and political discourse. In fact the Internet is the linchpin of a democratic society and social media platforms have become crucially important for participatory democracy.

The dramatic events involving the Gezi Park protests exposed the complicity and almost complete government control of mainstream Turkish media, which largely failed to report the protests. In fact, traditional media as we know almost died a few weeks ago in Turkey, and the only media that people can obtain information on crucial matters of public interest such as the Gezi Park and subsequent protests is the new media and social media platforms.

As you all know by now rather than showing the live images of the protests CNNTurk showed a very interesting documentary about penguins. In fact, the Penguins have become the symbol of an anti censorship movement in Turkey and the beginning of a shift from traditional media to social media for a considerable number of Turkish people.

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With regards to the Gezi Park protests it should not be forgotten that the European Court decided in several cases that the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society. You cannot separate these two fundamental rights from each other. In fact they go hand to hand.

Going back to the Internet and social media related issues, contrary to the statement of the prime minister, social media is not a menace but a sine qua non of democracy. In this new world if there is no social media or Twitter there shall be no democracy.

Let me tell you about the Internet Control Regime in Turkey as an update to what I told the attendees in this room during the first SpeakUp Conference. Law 5651 resulted with approximately 30.000 websites being blocked from Turkey in the name of protection of children disregarding adults rights to access legal content. The Law has been challenged at the Strasbourg level and found to be incompatible with Article 10 of ECHR in the case of Ahmet Yildirim v Turkey. It was regarded as a disproportionate ban even though there was a legal basis for the blocking order. So far no single government authority has commented on such a crucial case nor took action to reform the censorship provisions of Law No 5651 or any other similar legal measures.

In Turkey we not only have access blocking measures but also filtering from Internet cafes and homes “for our safety of course” as part of the broader paternalistic approach adopted by the government.

Morevoer, during the last 12 months or so we started to come across more and more bloogers and social media users being prosecuted, Fazil Say, Recep Okuyucu, İbrahim Davutoğlu, Sevan Nişanyan a few to name..

Now the government hinted that they might introduce further measures with regards to social media platforms. It is not clear in my mind what they will do but the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the criticisms it received.

Democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.

In fact, in times of crisis governments should avoid knee jerk reaction to such events and immediately introduce further restrictions. We want the government to reform the Internet law in compliance with ECHR and not to introduce further restrictions on Internet communications and social media platforms whether in the form of new content related restrictions or law enforcement measures which would intrude on privacy of Internet users including the right to stay anonymous in Turkey.

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June 5th, 2013

Press Release Concerning Twitter Detentions in Turkey

PRESS RELEASE CONCERNING TWITTER DETENTIONS

LONDON, UK: 05 June 2013

Yaman Akdeniz & Kerem Altıparmak

On 04 June and 05 June 2013, it has been reported that at least 24 people have been taken into custody in İzmir due to the tweets they sent. At this time, it is impossible to learn the details given the secrecy of the investigation. At the same time, it is necessary to issue this statement given the fact that many people have been subject to the same accusation.

1. The investigation seems to have been launched by virtue of articles 214 and 217 of the Turkish Penal Code that concern incitement to commit a crime and disobey the law.

Article 214, incitement to commit a crime states: (1) The person who openly incites the committing of a crime shall be punished from six months to five years. (2) The person who arms one part of the nation against the other and incites their murder shall be punished from fifteen to twenty four years of imprisonment. (3) If the act is committed, the inciter shall be punished as the instigator.

Article 217, incitement to disobey the law states: (1) The person openly inciting the people to disobey the law, shall be punished from six months to two years if the incitement amounts to disturb the public peace.

While these articles have not been much used against freedom of speech so far, the principles that apply to other articles concerning freedom of speech in the Penal Code shall also be applicable here.

2. Therefore, the international human rights standards as set out in the European Convention on Human rights shall be taken into consideration when applying articles 214 and 217. According to the European Court of Human Rights, in order to limit an expression it either has to contain hate speech or has to directly cause violence. An invitation in the social media and in particular in Twitter to a demonstration and parade, giving a political message, sharing a self-recorded or media accessible expression, video and photo may not be limited unless it openly amounts to “incitement to violence”.

3. Under human rights law, public authorities have to prove a very high standard for something to constitute incitement to violence. This must take into consideration by whom the expression was made, to whom and in what type of atmosphere it was addressed by what means and the tone of what is being said. In an atmosphere where hundred thousands of people have been demonstrating for days, the interpretation of sharing messages in social media and in Twitter as amounting to something they would not do is distortion of reality if not bad faith.

4. Further, when freedom of expression is to be limited, it is not enough to take into consideration only the freedom of those subject to investigation. The limitation of one person’s freedom of speech may effect tens of thousands of people who want to express the same opinion. It is easy to observe that especially when it comes to social media and Twitter this effect is much deeper. In the freedom of speech theory, this is known as the “chilling effect”. In many decisions of the European Court of Human Rights it has been underlined that this effect is seen as something that violates freedom of speech. While only 24 people have been taken into custody, its effect is not limited to these 24 people, but reach ten thousands of social media users who has been worried by the investigation. This is unacceptable in a democratic regime which requires the protection of freedom of speech.

5. The public authorities that constitute the three branches should never forget that freedom of speech constitutes the core principle of a democracy and their main duty is to guarantee this freedom. Unfortunately, in every political problem it runs into, Turkey adopts new penal laws or practices that limit freedom of speech. In an environment where just a month ago, freedom of expression has been expanded with the fourth judicial amendment round, articles 214 and 217 that have not been subject to the package are being used as pretexts for limiting freedom of speech. The only way to overcome this wrong approach commonly employed is to interpret all laws in accordance with international human rights standards.

6. For the reasons expressed above, the investigation of expression used in the social media that do not have any causal link to violence shall be stopped immediately. Accessing those messages is a violation of the right to privacy and subjecting them to investigation should be legally sanctioned without delay.

7. Contrary to the statement of the prime minister, social media is not a menace but a sine qua non of democracy. In this new world if there is no social media or Twitter there shall be no democracy.

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June 5th, 2013

Press Release Concerning Twitter Detentions in Turkey

PRESS RELEASE CONCERNING TWITTER DETENTIONS

LONDON, UK: 05 June 2013

Yaman Akdeniz & Kerem Altıparmak

On 04 June and 05 June 2013, it has been reported that at least 24 people have been taken into custody in İzmir due to the tweets they sent. At this time, it is impossible to learn the details given the secrecy of the investigation. At the same time, it is necessary to issue this statement given the fact that many people have been subject to the same accusation.

1. The investigation seems to have been launched by virtue of articles 214 and 217 of the Turkish Penal Code that concern incitement to commit a crime and disobey the law.

Article 214, incitement to commit a crime states: (1) The person who openly incites the committing of a crime shall be punished from six months to five years. (2) The person who arms one part of the nation against the other and incites their murder shall be punished from fifteen to twenty four years of imprisonment. (3) If the act is committed, the inciter shall be punished as the instigator.

Article 217, incitement to disobey the law states: (1) The person openly inciting the people to disobey the law, shall be punished from six months to two years if the incitement amounts to disturb the public peace.

While these articles have not been much used against freedom of speech so far, the principles that apply to other articles concerning freedom of speech in the Penal Code shall also be applicable here.

2. Therefore, the international human rights standards as set out in the European Convention on Human rights shall be taken into consideration when applying articles 214 and 217. According to the European Court of Human Rights, in order to limit an expression it either has to contain hate speech or has to directly cause violence. An invitation in the social media and in particular in Twitter to a demonstration and parade, giving a political message, sharing a self-recorded or media accessible expression, video and photo may not be limited unless it openly amounts to “incitement to violence”.

3. Under human rights law, public authorities have to prove a very high standard for something to constitute incitement to violence. This must take into consideration by whom the expression was made, to whom and in what type of atmosphere it was addressed by what means and the tone of what is being said. In an atmosphere where hundred thousands of people have been demonstrating for days, the interpretation of sharing messages in social media and in Twitter as amounting to something they would not do is distortion of reality if not bad faith.

4. Further, when freedom of expression is to be limited, it is not enough to take into consideration only the freedom of those subject to investigation. The limitation of one person’s freedom of speech may effect tens of thousands of people who want to express the same opinion. It is easy to observe that especially when it comes to social media and Twitter this effect is much deeper. In the freedom of speech theory, this is known as the “chilling effect”. In many decisions of the European Court of Human Rights it has been underlined that this effect is seen as something that violates freedom of speech. While only 24 people have been taken into custody, its effect is not limited to these 24 people, but reach ten thousands of social media users who has been worried by the investigation. This is unacceptable in a democratic regime which requires the protection of freedom of speech.

5. The public authorities that constitute the three branches should never forget that freedom of speech constitutes the core principle of a democracy and their main duty is to guarantee this freedom. Unfortunately, in every political problem it runs into, Turkey adopts new penal laws or practices that limit freedom of speech. In an environment where just a month ago, freedom of expression has been expanded with the fourth judicial amendment round, articles 214 and 217 that have not been subject to the package are being used as pretexts for limiting freedom of speech. The only way to overcome this wrong approach commonly employed is to interpret all laws in accordance with international human rights standards.

6. For the reasons eluded above, the investigation of expression used in the social media that do not have any causal link to violence shall be stopped immediately. Accessing those messages is a violation of the right to privacy and subjecting them to investigation should be legally sanctioned without delay.

7. Contrary to the statement of the prime minister, social media is not a menace but a sine qua non of democracy. In this new world if there is no social media or Twitter there shall be no democracy.

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June 5th, 2013

PRESS RELEASE CONCERNING TWITTER DETENTIONS

LONDON, UK: 05 June 2013

Yaman Akdeniz & Kerem Altıparmak

On 04 June and 05 June 2013, it has been reported that at least 24 people have been taken into custody in İzmir due to the tweets they sent. At this time, it is impossible to learn the details given the secrecy of the investigation. At the same time, it is necessary to issue this statement given the fact that many people have been subject to the same accusation.

1. The investigation seems to have been launched by virtue of articles 214 and 217 of the Turkish Penal Code that concern incitement to commit a crime and disobey the law.

Article 214, incitement to commit a crime states: (1) The person who openly incites the committing of a crime shall be punished from six months to five years. (2) The person who arms one part of the nation against the other and incites their murder shall be punished from fifteen to twenty four years of imprisonment. (3) If the act is committed, the inciter shall be punished as the instigator.

Article 217, incitement to disobey the law states: (1) The person openly inciting the people to disobey the law, shall be punished from six months to two years if the incitement amounts to disturb the public peace.

While these articles have not been much used against freedom of speech so far, the principles that apply to other articles concerning freedom of speech in the Penal Code shall also be applicable here.

2. Therefore, the international human rights standards as set out in the European Convention on Human rights shall be taken into consideration when applying articles 214 and 217. According to the European Court of Human Rights, in order to limit an expression it either has to contain hate speech or has to directly cause violence. An invitation in the social media and in particular in Twitter to a demonstration and parade, giving a political message, sharing a self-recorded or media accessible expression, video and photo may not be limited unless it openly amounts to “incitement to violence”.

3. Under human rights law, public authorities have to prove a very high standard for something to constitute incitement to violence. This must take into consideration by whom the expression was made, to whom and in what type of atmosphere it was addressed by what means and the tone of what is being said. In an atmosphere where hundred thousands of people have been demonstrating for days, the interpretation of sharing messages in social media and in Twitter as amounting to something they would not do is distortion of reality if not bad faith.

4. Further, when freedom of expression is to be limited, it is not enough to take into consideration only the freedom of those subject to investigation. The limitation of one person’s freedom of speech may effect tens of thousands of people who want to express the same opinion. It is easy to observe that especially when it comes to social media and Twitter this effect is much deeper. In the freedom of speech theory, this is known as the “chilling effect”. In many decisions of the European Court of Human Rights it has been underlined that this effect is seen as something that violates freedom of speech. While only 24 people have been taken into custody, its effect is not limited to these 24 people, but reach ten thousands of social media users who has been worried by the investigation. This is unacceptable in a democratic regime which requires the protection of freedom of speech.

5. The public authorities that constitute the three branches should never forget that freedom of speech constitutes the core principle of a democracy and their main duty is to guarantee this freedom. Unfortunately, in every political problem it runs into, Turkey adopts new penal laws or practices that limit freedom of speech. In an environment where just a month ago, freedom of expression has been expanded with the fourth judicial amendment round, articles 214 and 217 that have not been subject to the package are being used as pretexts for limiting freedom of speech. The only way to overcome this wrong approach commonly employed is to interpret all laws in accordance with international human rights standards.

6. For the reasons eluded above, the investigation of expression used in the social media that do not have any causal link to violence shall be stopped immediately. Accessing those messages is a violation of the right to privacy and subjecting them to investigation should be legally sanctioned without delay.

7. Contrary to the statement of the prime minister, social media is not a menace but a sine qua non of democracy. In this new world if there is no social media or Twitter there shall be no democracy.

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June 1st, 2013

CTS Westminster Debate with Yaman Akdeniz and Kerem Altiparmak

Timely event will take place in London next week on 05 June, 2013.

Westminster Debate
‘FREEDOM OF EXPRESSION IN LIGHT OF TURKISH EU ASPIRATIONS’

Wednesday, June 5, 2013 from 7:00 PM to 9:00 PM (GMT)
Committee Room 15, House of Commons, Westminster
London, United Kingdom

The Centre for Turkey Studies (CTS) is pleased to invite you to a Westminster based forum on ‘Freedom of Expression in light of Turkish EU Aspirations’ featuring Prof Yaman Akdeniz and Dr Kerem Altiparmak.

Prof Yaman Akdeniz is a Professor of law and teaches at the Human Rights Law Centre at Istanbul Bilgi University, as well as being the founder and director of Cyber-Rights.org, and co-founder of BilgiEdinmeHakki.org.

Dr Kerem Altiparmak is currently the Director of the Human Rights Centre at the Faculty of Political Sciences at Ankara University, teaching human rights law. He is closely involved with NGOs in the field of human rights in Turkey, and has published numerous articles related thereto as well as media freedom in Turkey.

Please find more extensive biographies of each speaker below. This CTS Westminster Debate event is kindly hosted by Emma Reynolds, Labour MP.

We look forward to seeing you on Wednesday 5th of June 2013, between 7pm and 9pm, in Committee Room 15, House of Commons, Westminster. Please note that security checks are required to enter the House of Commons, so we kindly ask you to arrive at 6pm, allowing the event to start and end promptly on time.

Booking is required for this event
Please register on ceftus.org
Or RSVP to info@ceftus.org
Or click here

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June 1st, 2013

Mass protests in Turkey continue

It has been a while since I last had the chance to post something on the CyberLaw Blog. I have been following the Istanbul protests for the last few days and how the media ignored the events and self-censored itself until today. Major TV channels completely ignored the events of last night and even today most news coverage is provided from outside sources like CNN International and Al Jazeera. There is an excellent article in the Guardian entitled “Turkey prime minister faces fury as Istanbul erupts into mass protest”which provides a good overview of what is currently happening in Turkey. I tweet at @cyberrights in case anyone wants to follow. YA

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July 24th, 2012

New Details of UK Piracy Monitoring Plan Made Public

New Details of UK Piracy Monitoring Plan Made Public: “

The anti-piracy elements of the UK’s controversial and much-delayed Digital Economy Act are continuing their slow march to implementation with the publication of OFCOM’s updated Initial Obligations Code today.

As the DEA dictates, ISP accounts linked to peer-to-peer infringements will be subject to receiving a series of notifications warning the bill payer that their activities (or those of people in their household) are unacceptable and in need of change.

The amendments to the Code, which provides a set of standards and procedures by which the anti-P2P (mainly BitTorrent related) elements of the Act will be governed, are very much a mixed bag.

First, and on the plus side for subscribers, is that evidence collection systems of copyright holders will have to fall into line with OFCOM standards before they can send any CIRs (copyright infringement reports) to ISPs.

Additionally, the Code states that copyright owners may only send a CIR if they have ‘gathered evidence in accordance with the approved procedures’ which lead to the ‘reasonable’ belief that the subscriber has infringed a rightsholder’s copyright or that he has allowed someone else to use his account in order to do so.

In the original version of OFCOM’s Code rightsholders were given 10 days in which to send CIRs to ISPs, but in the updated code they are allowed a month following the time of detection – roughly three times longer than before.

For their part, ISPs were previously allowed 10 days from receipt of a CIR to notify a customer that they had been tracked. That period has now been extended to one month. This means that there could be a 60 day gap between an alleged infringement and a subscriber being notified, up from just 20 days.

On the downside for consumer protection is the complete removal of a clause which allowed ISPs to reject rightholder CIRs if they felt in their ‘reasonable opinion’ they were invalid.

Originally it was envisaged that so-called ‘first and ‘second’ strike warnings would go out via email with only the ‘third’ going out by recorded regular mail. That has now been scrapped. All warnings will now go out by regular first class mail, meaning that there will be absolutely no proof that a subscriber has received his third warning.

In addition to conveying the warning itself, CIRs will now have to show the time and date when any infringement took place (as opposed to simply when the evidence was gathered) and also display the number of previous CIRs sent to the subscriber.

OFCOM reports that it has also introduced a requirement that there be a 20 day gap introduced between the date a previous CIR was sent out to a subscriber and evidence being valid for the creation of a subsequent CIR.

Under the previous iteration of the Code, copyright owners would only be able to request a copyright infringement report from ISPs once every three months, and the service provider would be given 5 days to produce it. That three month period has been reduced to a single month and ISPs will have double the time – 10 days – to produce it.

Under the Code subscribers will be able to lodge an appeal against wrongful accusations of infringement. The time to do so has now been clarified as 20 days from the date of receiving a CIR. It will cost an Internet account holder £20.00 to do so.

Finally, the amended Code ends with notes that the UK Government ordered the removal of two elements, both of which would have given a level of protection to subscribers.

‘On the instruction of Government we have removed the ability for subscribers to appeal on any other ground on which they choose to rely,’ the report notes, adding:

‘On the instruction of Government we have removed the requirement for ISPs and copyright owners to provide a statement showing how their processes and systems are compliant with the Data Protection Act.’

This draft Code is now open for a one month consultation period before being presented to parliament later this year. Letters will start going out in 2014…..maybe.

The full report is available here.

Source: New Details of UK Piracy Monitoring Plan Made Public

flattr this!

(Via TorrentFreak.)

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July 24th, 2012

UK ISPs Secretly Expand “Futile” Pirate Bay Blockade

UK ISPs Secretly Expand “Futile” Pirate Bay Blockade: “

pirate bayIn April, the UK High Court ruled that several of the country’s leading ISPs must censor The Pirate Bay since the site and its users breach copyright on a grand scale.

In the weeks that followed Virgin Media, BT, Everything Everywhere, Sky Broadband, TalkTalk, BE and O2 all blocked access to the world’s largest BitTorrent site. Several of the site’s IP-addresses and domain names were made inaccessible.

In a response The Pirate Bay decided to add some new IP-addresses, effectively bypassing the blockades. This worked, until this week when several ISPs updated their blocklists to include the new addresses.

In the UK the procedure to add new domains and IP-addresses is part of a ‘private agreement,’ which apparently allows the providers to quietly add new entries when it’s deemed necessary.

As of this week 194.71.107.82 and 194.71.107.83 are no longer accessible on Sky Broadband, Virgin Media and TalkTalk and possibly other providers as well. The new addresses were added quietly by all ISPs without notifying the public.

Whether the updated filter will have any effect has yet to be seen. The Pirate Bay wouldn’t be The Pirate Bay if they hadn’t already lined up a new address, and indeed they have. During the weekend the BitTorrent site will add 194.71.107.164 (not live yet) to keep the whack-a-mole game going.

A Pirate Bay insider told TorrentFreak that they have enough new addresses to keep the providers busy for years to come. However, for them it’s more of a statement than anything else as there are already dozens of proxy sites that allow users to access The Pirate Bay just fine.

The most frequently visited proxy in the UK, operated by the local Pirate party, is already among the top 350 sites in the UK.

The above shows once again that while these blockades may stop some people from accessing a site, the really determined have plenty of options. Also, of those who simply give up on accessing The Pirate Bay, many will simply switch to other torrent sites.

Proof of the ineffectiveness of the censorship attempts was recently highlighted by several Dutch and UK Internet providers, who claimed that BitTorrent traffic didn’t decline after the blockades were implemented.

In other words, blocking The Pirate Bay is futile.

As we’ve concluded before, the entertainment industry might be better off pumping money into business models that give customers what they want, legally. The censorship route doesn’t seem to work out for now.

Source: UK ISPs Secretly Expand ‘Futile’ Pirate Bay Blockade

(Via TorrentFreak.)

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May 6th, 2012

British Government to consult on automatic porn censorship proposals

Government to consult on automatic porn censorship proposals: “The Government is to consult on proposals that would require internet service providers (ISPs) to offer to block customers’ access to pornographic material by default.”

(Via OUT-LAW News.)

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May 1st, 2012

Judge: Big Five ISPs must block The Pirate Bay

Judge: Big Five ISPs must block The Pirate Bay: “

‘Musicians, sound engineers, video editors deserve to be paid for their work’

As expected, the High Court has ordered British ISPs to block access to The Pirate Bay. Five ISPs – Virgin Media, TalkTalk, BSkyB, Everything Everywhere and Telefonica – are involved in this case, which was brought by nine record labels.…

(Via The Register – Public Sector.)

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