CyberLaw Blog

Archive for September, 2009

Since the Law No. 5651 entitled Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication came into force in November 2007, access to a considerable number of foreign websites including popular websites such as YouTube, Geocities, DailyMotion, WordPress, Google Groups, and Google Sites have been blocked from Turkey under the provisions of this law by court orders and administrative blocking orders issued by the Telecommunications Communication Presidency (TIB). [Blog entry by Dr. Yaman Akdeniz]

Currently, under the provisions of Law No. 5651 access to over 3000 websites is blocked from Turkey. In terms of official statistics, it was revealed by TIB that as of 11 May, 2009, 2601 websites are blocked in Turkey under the provisions of Law No. 5651. While 475 (18%) of the 2601 websites are blocked by court orders, the majority, with 2126 websites (82%), are blocked via administrative blocking orders issued by TIB. In terms of the 475 court orders so far, 121 websites are currently blocked because they were deemed obscene (Article 226 of the Turkish Penal Code), 54 websites are blocked because they involved sexual exploitation and abuse of children (Article 103(1) of the Turkish Penal Code), 19 websites are blocked because of provision of gambling (Article 228 of the Turkish Penal Code), 20 are blocked because they involved betting, and 54 websites were ordered to be blocked in relation to crimes committed against Atatürk (Law No. 5816, dated 25/7/1951). 32 of these 54 blocking orders were recurring orders involving approximately 17 websites (majority involved YouTube) issued by different courts around the country. Furthermore, 5 websites were blocked in relation to prostitution (Article 227, Turkish Criminal Code), and one website was ordered to be blocked in relation to the facilitation of the use of drugs (Article 190 of the Turkish Penal Code).

More interestingly, 197 websites were blocked by courts for reasons outside the scope of Law No. 5651 but the detailed breakdown for these orders was not provided by TIB. It is however understood that TIB executed the blocking orders even though they do not involve the catalogue crimes listed in Article 8. The number of websites blocked outside the scope of Article 8 by the courts was 69 in May 2008 but reached nearly 200 by end of May 2009.

In terms of the 2126 administrative blocking orders issued by TIB, the majority, with 1053 blocking orders involved sexual exploitation and abuse of children (Article 103(1) of the Turkish Penal Code), 846 involved obscenity (Article 226 of the Turkish Penal Code), 117 involved football and other sports betting websites (Law No. 5728, article 256), 74 involved gambling sites (Article 228 of the Turkish Penal Code), 20 involved prostitution websites (Article 227 of the Turkish Penal Code), 11 involved websites facilitating the use of drugs (Article 190 of the Turkish Penal Code), 2 involved crimes committed against Atatürk (Law No. 5816, dated 25/7/1951), and one involved encouragement and incitement of suicide (Article 84 of the Turkish Penal Code).

It should be noted that TIB recently decided NOT to publish and reveal the detailed the official blocking statistics with regards to Law No. 5651, and since May 2009 I have not had access to such statistics. TIB’s decision is a step backwards and in the absence of information, openness, and transparency it will be even more difficult to monitor the current regulatory regime in Turkey.

Furthermore, blocking orders can also be issued by courts and by public prosecutors with regards to intellectual property infringements subject to the supplemental article 4 of the Law No. 5846 on Intellectual & Artistic Works as was witnessed with the blocking of Myspace, Last.fm, and akilli.tv during last few days. Such orders are predominantly issued with regards to websites related to piracy (e.g. The Pirate Bay), and IP infringements (e.g. Justin.TV), and media reports suggest that at least 3,000 websites are blocked under law No. 5846 from Turkey, and majority are blocked indefinitely. The Pirate Bay and MegaUpload are among those websites which are constantly blocked. During 2008, Google owned Blogspot, and Blogger were subjected to blocking under these provisions for a limited period of time because of football streaming piracy.

Therefore, currently, it is alleged that access to at least 6,000 websites is blocked from Turkey, and it could be speculated that the number is even higher than that. Engelliweb. com (http://engelliweb.com/) currently details 4196 blocked websites.

UK – Tories pledge to end the database state (ZDNet)
The Conservative Party has promised to reduce government databases and introduce stronger measures to protect people’s privacy, if it wins the next general election. The shadow justice secretary, Dominic Grieve, introduced a policy paper, Reversing the Rise of the Surveillance State, that outlines 11 measures to achieve these goals. Overall, the Conservatives are calling for fewer massive central government databases, stronger data-protection rules and fewer access rights – for both central and local government – to the information that is already been stored. The party also pledged to introduce a greater focus on privacy, in both the public and private sectors.

(Via QuickLinks Update.)

As of Friday, 18 September, 2009 access to popular social networks Myspace and Last.fm are blocked from Turkey. The blocking order is issued by the Beyoğlu Chief Public Prosecutor’s Office (order no 2009/45 dated 26.06.2009). It is suspected that both sites are blocked because of “intellectual property infringements” following a request by Mu-yap, the Turkish Phonographic Industry Society. It is also alleged that Myspace and Last.fm were part of about 100 websites which were subjected to blocking on Friday. [Blog entry by Dr. Yaman Akdeniz - I will update this story as more information is made available - last update on 23.09.2009]

Access blocking is a legal remedy for intellectual property infringements provided under
Supplemental Article 4 of the Turkish Law No. 5846 on Intellectual & Artistic Works. This provision was introduced in March 2004 and provides a two-stage approach:

Initially the law requires the hosting companies, content providers, or access providers to take down the infringing article from their servers upon “notice” given to them by the right holders. The providers need to take action within 72hrs. Currently, no one knows whether Mu-yap or the right holders approached Myspace or Last.fm. Both sites have versions in Turkish and Myspace has recently opened an office in Turkey. Therefore, by law, I would expect the right holders to get in touch with these two companies for the removal of “allegedly infringing content”.

If the allegedly infringing content is not taken down or there is no response from the content providers (Myspace and Last.fm), the right holders can ask the Public Prosecutor to provide for a blocking order, and the blocking order is executed within 72hrs by the Turkish Internet Service Providers.

Currently access to myspace.com as well as lastfm.com.tr is blocked from majority of Turkish ISPs. However, access to last.fm is not currently blocked, and a major ISP, Superonline has not yet executed the blocking order which coincided with a religious holiday. Furthermore, those who have iPhones or Macs can use the relevant Last.fm applications without any restrictions from these devices.

The Turkish website “sansuresansur.org” (‘censor to censorship’) prompted internet users on their website not to accept the bans without a word of protest. Musician Aylin Aslım wrote the following on her facebook site: “Blocking access to myspace.com is serious injustice to independent musicians in Turkey. We do not want to be forced to return to music channels and record companies with their filthy politics. We want our music to be available freely to everybody who wants to listen to it”. Furthermore, Mehmet Tez from Milliyet daily newspaper commented the blockage on his own web page hafifmusik.org (‘light music’): “Well done! A great success. Turkey is proud of you”.(See Bianet: MySpace and Last FM Censored)

Blocking access to popular social networking sites such as YouTube, Myspace, and Last.fm will damage Turkey’s reputation whatever the reasons behind such decisions. Blocking access to any of these Web 2.0 based applications and systems have extreme side effects. Blocking orders not only result in the blocking of access to the allegedly illegal content (usually a single file or page) but they also result in the blocking of millions of legitimate pages, files, and content under the single domain that these systems operate.

These sites are not known to promote illegal content and activity even though their services may contain content which may be deemed undesirable or illegal by Turkish law and any other state laws around the world. The courts, the judges, and the public prosecutors therefore should not issue “domain based blocking orders” and there is no need to “burn the house to roast the pig” as was established by the US Supreme Court in Reno v. ACLU (U.S. Supreme Court majority decision, Reno v. ACLU (26 June, 1997)).

Web Censoring Widens Across Southeast Asia: “(WSJ)
Attempts to censor the Internet are spreading to Southeast Asia as governments turn to coercion and intimidation to rein in online criticism. Malaysia, Thailand and Vietnam lack the kind of technology and financial resources that China and some other large countries use to police the Internet. The Southeast Asian nations are using other methods — also seen in China — to tamp down criticism, including arresting some bloggers and individuals posting contentious views online. See interactive graphics.

(Via QuickLinks Update.)

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(Via TorrentFreak.)

ISP Appeals Decision Forcing it to Disconnect Pirate Bay

On 24th August Stockholm’s district court ordered action to remove The Pirate Bay from the Internet, pending the outcome of a civil action taken by several entertainment companies.

The court ordered Black Internet, supplier of bandwidth to The Pirate Bay, to disconnect the site from the Internet or face penalties of 500,000 kronor ($70,600). The ISP had little choice but to comply. The issue is a serious one and goes far beyond The Pirate Bay – it could be used to silence many other sites in the future unless action is taken.

Earlier this month several politicians objected to the court’s decision, including Camilla Lindberg who sits in parliament for the Liberal Party. She believes that threatening an ISP with damages is taking things too far;

‘To silence an operator, I think this is outrageous. We need to review the law and we need a proper investigation,’ she said. ‘Both the public and companies in the IT industry have been surprised and outraged by the Stockholm district court’s decision to issue the ban on Black Internet. The decision is considered by many to go against the legislative history behind the amendment of the Copyright Act in 2005.’

Lindberg went on to say that there is fear that in the future ISPs may be forced to examine the content of traffic that passes through their networks, in order to protect themselves from legal action.

Now, after taking a little while to consider its options, Black Internet has changed its mind about appealing the decision. Initially Black Internet CEO Victor Möller told the Swedish press his company would not appeal, citing a laborious and expensive legal process, but now there has been a change of heart.

‘This is the first time in Sweden that an operator has been ordered to stop delivering Internet to someone. We want to know if it’s correct to do so,’ said Möller

‘The district court made a very controversial decision. The entire ISP business needs some clarity in this matter. A door has been opened and we don’t know what’s behind it. This is a very important question for all ISPs and we can’t just lay down,’ he added.

Having previously cited cost as a barrier to an appeal, TorrentFreak learned that there are other groups who are very interested in Black Internet appealing the Stockholm court’s decision, so it appears some sort of collaboration could be on the cards to enable that.

Here we go again… Hadopi strikes 2

(Via TorrentFreak.)

France Passes New 3 Strikes Anti-Piracy Bill

Following its initial adoption in May 2009, the original version of the controversial Hadopi anti-piracy legislation was nuked by the Constitutional Council, France’s highest legal authority. It took a similar view to that of the European Parliament, declared the proposals unconstitutional and demanded that those accused should enjoy a fair trial.

On July 8th, a modified version of the bill was accepted by the French Senate after assurances were made that the final decision of disconnection under a 3 strikes-style regime would be passed to a judge.

The new structure is suggested as follows. Once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

Furthermore, innocent ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of ‘negligence’, risking a maximum 1,500 euro fine and a 4 week disconnection.

Today French legislators voted on the new compromise bill. In the National Assembly it passed with 225 votes against and 285 votes in favor. The bill (now known as Hadopi 2) will now move to the upper house (the Senate) for approval. It will then be signed into French law.

EU Commission sets up piracy monitor but rejects copyright reform: “The European Commission is establishing a body to analyse the scale of counterfeiting and piracy and to co-ordinate international action on the issue. It has asked each member state to nominate a co-ordinator to aid the process.”

(Via OUT-LAW News.)

UK lawyer threatens Facebook, mulls action against ISPs to block defamation: “The lawyer who has threatened Facebook with a defamation suit on behalf of boxing promoter Frank Warren has said that he may take action against internet service providers (ISPs) for US-published defamation.”

(Via OUT-LAW News.)

Lily Allen hits out at file sharers as Tories mock government plans: “The battle within the music industry over how to deal with internet pirates intensified today as the Conservatives announced their opposition to government plans to disconnect repeat offenders from the internet, and Lily Allen condemned artists who have spoken out against the proposals.

Allen, in a lengthy posting on her blog, criticised “rich and successful artists” such as Ed O’Brien, of Radiohead, and Nick Mason, the Pink Floyd drummer, told The Times that file-sharing had some beneficial effects for artists.

Allen wrote today: “I think music piracy is having a dangerous effect on British music, but some really rich and successful artists like Nick Mason from Pink Floyd and Ed O’Brien from Radiohead don’t seem to think so.

“Last week in an article in The Times these guys from huge bands said file-sharing music is fine. It probably is fine for them. They do sell-out arena tours and have the biggest Ferrari collections in the world.

“For new talent, though, file-sharing is a disaster as it’s making it harder and harder for new acts to emerge.

“The Featured Artists Coalition also says file-sharing’s fine because it ‘means a new generation of fans for us’.

“This is great if you’re a big artist at the back end of your career with loads of albums to flog to a new audience, but emerging artists don’t have this luxury.

“Basically the FAC is saying, ‘we’re alright, we’ve made it, so file-sharing’s fine’, which is just so unfair to new acts trying to make it in the industry.”

(Via Tech and Web from Times Online.)

China: Blue Dam activated: “

Beijing government has recently required all Internet service providers (ISPs) and data centers to install a software called Blue Dam in all their servers. According to todays Taiwan Apple Daily News, the Blue Dam has to be activated by today (September 13) or the companies have to subject to punishment.

The Blue Dam software can be downloaded from here. The Blue Dam is developed by Shanghai Andatong Information Safety Technology Company and ccording to a report back in July 2009, the Blue Dam is 20 times more effective than the Green Dam as it is a combination of software and hardware.

The Blue Dam system is consisted of the following features: a graphic-filtering system, administrative-management system, internet-behavior manager, VPN client. The developer said that the business version of the Blue Dam can help company to stop their workers from visiting websites or hanging around in the Internet on non work related activities.

Back in June, the Beijing government required international PC makers to equip their PC shipped to China with a filter software called ‘Green Dam-Youth Escort’ by July 1. The plan was finally dropped as the internet public opinion has strong reaction against the filter.

Now that the Blue Dam is installed at the ISP level without much open discussion. Netizens will be subject to censorship and online behavior control with little self-awareness.

“

(Via Global Voices Advocacy.)