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Archive for the ‘ECHR’ Category

Bianet: Turkey Inquired about Internet Censorship

EUROPEAN COURT OF HUMAN RIGHTS
Turkey Inquired about Internet Censorship

The European Court of Human Rights examines two applications from Turkey regarding cases of internet censorship in 2009. Turkish authorities were allowed time till 9 June to submit a response. Internet expert Akdeniz emphasized the international importance of the decision.

Istanbul – BİA News Center
10 March 2011, Thursday

The European Court of Human Rights (ECHR) is examining the application against internet censorship filed by Turkish nationals Ahmet Yıldırım and Yaman Akdeniz. The international court expects an item of written comment from Turkey until 9 June.

According to a written statement published by the Cyber-Rights.org.tr news site on 7 March, the ECHR merged the files regarding the access ban to Google sites and to LastFM.com on 31 January. The restrictive decision (No. 2009/337) on the Google services was given by the 2nd Magistrate Criminal Court of Denizli (western Turkey) on 23 June 2009. Access to the music sharing site LastFm.com was banned by the Beyoğlu (Istanbul) Public Chief Prosecution on 26 June 2009 (decision no. 2009/45).

On 16 February, the ECHR posted the particularities of both applications on its website together with a list of questions forwarded to the Turkish authorities.

The court allowed time till 9 June for Turkey to respond to the questions. Cyper-Rights.org.tr reported that the court in Strasbourg announced 24 April as the deadline for non-governmental organizations that applied for co-plaintiff status to submit their point of view.
Akdeniz: Important decision for all members of the Council of Europe

Assoc. Prof. Yaman Akdeniz commented the issue on behalf of the website as follows:

‘The Foreign Minister Ahmet Davutoğlu emphasized several times the decision ‘not to make a defence regarding trials (at the ECHR) on freedom of thought’. However, only in June 2011 we will see whether this political decision is also valid for applications filed to the ECHR’.

‘The Strasbourg Court examines [the applications related to] internet censorship. These two applications carry importance not only for Turkey but for all member states of the Council of Europe’, Akdeniz indicated. (EÇ/VK)

Hurriyet Daily News: European court asks Turkey to explain its Internet bans

Wednesday, March 9, 2011
ERISA DAUTAJ ŞENERDEM
ISTANBUL – Hürriyet Daily News

A European court has asked Turkish authorities to explain their use of the country’s law to ban websites, responding to applications by two complainants who say the bans violate their right to freedom of expression.

‘Users of different websites are being punished because others infringe legal provisions,’ said complainant Yaman Akdeniz, a cyber-rights activist and a law professor at Istanbul Bilgi University. He applied to the European Court of Human Rights on April 6, arguing that the Turkish government’s ban on the website Lastfm.com.tr violated his rights.

The decision to consider the case is a landmark one, Akdeniz said, explaining that it was the first time the court had taken up a complaint related to Internet bans.

‘The court’s final decision will set an important precedent for all Council of Europe member countries,’ Akdeniz told the Hürriyet Daily News & Economic Review on Wednesday.

Responding to the applications by Akdeniz and another Turkish complainant, the European court issued a request last month to Turkish authorities, asking them to answer by June 9, three questions of a general nature about the use of Turkish law to ban certain websites.

‘The court asked Turkish authorities for explanations regarding the application of legal provisions to ban websites,’ Akdeniz told the Daily News.

Fellow complainant Ahmet Yıldırım, a 28-year-old doctoral student at Boğaziçi University in Istanbul, applied to the European court Jan. 12, 2010, saying his personal website on Google Sites, which he used to publish his academic work, had been banned by Turkey. Both Akdeniz and Yıldırım said they appealed to the European court after having exhausted all domestic legal avenues.

Both applications were made before Turkish authorities’ recent ban of the popular blogging platform Blogger. The website, a property of Google Inc., was blocked in response to a complaint by the satellite television provider Digiturk about bloggers illegally posting football matches broadcast on Digiturk’s Lig TV channel.

The decision to ban Lastfm also involved a rights dispute; authorities used Turkish Law No. 5846 on artistic and intellectual works to issue the ban, arguing that the site had been used to illegally publish artistic works to which the user did not own the rights.

According to Akdeniz, who initiated the Lastfm-related case, authorities should identify and punish individuals who break the law, rather than punishing all Internet users by issuing blanket bans on websites.

Lastfm was banned in Turkey on Sept. 19, 2009, following a lawsuit brought to court by the Turkish Phonographic Industry Society, or MÜ-YAP.

In his complaint related to Google Sites, Yıldırım argued that Turkish authorities sought to ban access to the website for breaching provisions of Turkish Law No. 5651, on the regulation of publications and copyright infringements on the Internet. He said this violates his right to freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights.

Turkey’s controversial Internet bans have been a subject of much debate by experts as well as by millions of Turkish Internet users who have lost access to popular sites. Experts have criticized the implementation of Law No. 5651 and related laws to ban websites, saying that those who break laws must be tracked down and punished for their actions, rather than making all Turkish internet users pay the price.

Questions from the European court

The first question posed to Turkish authorities by the European court was related to Akdeniz’s application. ‘As a user, can Mr. Akdeniz claim to be a victim of an infringement to rights guaranteed by Article 10 of the Convention?’ it asked.

Another question dealt with whether the complainants’ freedom of expression had been infringed upon, particularly their right to receive or communicate information or ideas according to Article 10, Paragraph 2 of the Convention. The European court also asked Turkish authorities whether Turkish law permitted it to put an end to unjustified infringements on freedom of expression, and whether it had responded to the demands of Article 13 of the Convention.

English: Minister Yıldırım: YouTube or any Other Ordinary Person… – Bianet

In the context of the access ban for the YouTube website, Transport Minister Yıldırım addressed YouTube officials, ‘You will be treated just the same way as the ordinary people are treated in the Turkish Republic.

Erol ÖNDEROĞLU
hukuk@bianet.org
Ankara – BİA News Center
30 June 2010, Wednesday

Transport Minister Binali Yıldırım joint the discussion on the access ban imposed to the video sharing site YouTube two years ago. ‘Everybody in this country is obliged to abide by the laws. We do not meddle with anybody’s freedom to do internet commerce. Turkey is a state of law. Everybody should be tied to the force of law’, the minister said.

Yıldırım had a message for the people protesting the internet censorship as well, ‘They might be willing representatives and passionate advocators; that is not of our concern’.

Yıldırım reminded the fact that the Turkish government initiated the process to become a member of the European Convention on Cyber Crimes. Member states of the convention correspond with each other whether legal exchange should be carried out regarding any incident, he argued.
YouTube treated like any ordinary person…

During a speech delivered at the award ceremony of the ‘IT 500′ survey carried out by the Interpromedia Research Service, Yıldırım said, ‘YouTube is treated just like any other ordinary person’.

As reported by the news channel CNN Türk, Yıldırm stated that ’shortcuts have already become a tradition’ in Turkey. He continued, ‘This is a global brand, blah blah blah… ‘Sir, how can you stick up to this huge company’. If you believe in universal law and if you respect the sovereignty of the countries, you have to stick to the country’s rules regardless of who you are dealing with. A citizen from the country ‘X’ does not have priority in country ‘Y’. This conception is incompatible with democracy and modernity’.

‘Unfortunately, there are people in our country defending this issue on behalf of modernity. That hurts. Everybody is obliged to abide by the law of this country. Nobody has priority. This can be a willing representative or a passionate advocator, it does not concern us’.

‘We say, ‘go ahead, if you do business in this country, you will be treated before the law just as any other ordinary person in the Turkish Republic. We are not concerned with anybody’s freedom regarding internet commerce. Turkey is a state of law. Everybody should be tied to the force of law’.
‘Informatics does not get on well with the legislation’

Minister Yıldırım indicated that informatics and legislation do not get on well with each other. He argued that informatics is an area that ruins memorization, abolishes conservatism and creates a change of attitude. Legislation on the other hand pursued to keep everything under control, he said.

Assoc. Prof. Dr Mustafa Akgül, president of the Internet Technologies Association İNETD, filed a criminal complaint against restrictions of certain Google services. He also applied to the administrative court in respect to the ‘temporary access ban’ imposed on YouTube on 5 May 2008 which is still in effect today.

The file concerned with the access ban to the YouTube side has also been forwarded to the European Court of Human Rights. (EÖ/VK)

UK’s secret surveillance regime ‘does not breach human rights’: “

ECHR rules sneaky RIPA peeking perfectly proper

The European Court of Human Rights has rejected a claim that the UK’s Regulation of Investigatory Powers Act (RIPA) violates the human right to a private life. The UK’s rules and safeguards on covert surveillance are proportionate, said the court.…

“

(Via The Register – Public Sector.)

UK’s secret surveillance regime does not breach human rights, rules ECHR: “The European Court of Human Rights has rejected a claim that the UK’s Regulation of Investigatory Powers Act (RIPA) violates the human right to a private life. The UK’s rules and safeguards on covert surveillance are proportionate, said the court.“

(Via OUT-LAW News.)

129

16.02.2010

Press release issued by the Registrar

Chamber judgment1

Akdas v. Turkey (no 41056/04)

SEIZURE OF THE NOVEL Les ONZE MILLE verges BY Guillaume Apollinaire and conviction of the publisher hindered public access to a work belonging to the european literary heritage

Unanimously:

Violation of Article 10 (freedom of expression)

of the European Convention on Human Rights

Principal facts

The applicant, Mr Rahmi Akdaş, was born in 1958 and lives in Bandırma. He is a publisher and in 1999 published the Turkish translation of the erotic novel Les onze mille verges by the French writer Guillaume Apollinaire (“The Eleven Thousand Rods” – On Bir Bin Kırbaç in Turkish), which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.

Mr Akdaş was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The applicant argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire.

The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment – of 684,000,000 Turkish liras (equivalent to approximately 1,100 euros). In a final judgment of 11 March 2004 the Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book, in view of a 2003 legislative amendment. It upheld the remainder of the judgment.

Mr Akdaş paid the fine in full in November 2004.

Complaints, procedure and composition of the Court

Relying on Article 10, the applicant complained about his conviction as publisher of the novel Les onze mille verges by Guillaume Apollinaire and about the seizure of the book.

The application was lodged with the European Court of Human Rights on 2 September 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Vladimiro Zagrebelsky (Italy),
Danutė Jočienė (Lithuania),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey), Judges,

and also Françoise Elens-Passos, Deputy Section Registrar.

Decision of the Court

It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals. The Court further reiterated that those who promoted artistic works also had “duties and responsibilities”, the scope of which depended on the situation and the means used.

The requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.

Nevertheless, the Court had regard in the present case to the fact that more then a century had elapsed since the book had first been published in France (in 1907), to its publication in various languages in a large number of countries and to the recognition it had gained through publication in the prestigious “La Pléiade” series. Acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage.

Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10. There had therefore been a violation of that provision.

The Court considered that it was not necessary to examine the applicant’s other complaints.

Since the applicant did not submit a claim for just satisfaction within the time allowed, there was no need to make any award on that account.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).

Press contacts
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

European court pulls plugs on terror stop and search: “

Another clumsy fail for the Home Office

The European Court of Human Rights has ruled that the UK police’s use of stop and search powers granted under terrorism legislation is illegal.…

“

(Via The Register – Public Sector.)

New Labour bring old Nuremberg Laws to Britain: “

Police may act unlawfully when ‘only obeying orders’

Police officers could find themselves on the wrong end of a citizen’s arrest if they follow advice issued by Home Secretary, Alan Johnson, after the European Court of Human Rights slapped the UK’s stop and search laws.…

“

(Via The Register – Public Sector.)

Report of the OSCE Representative on Freedom of the Media on Turkey and Internet Censorship (PDF file)

Prepared by Dr. Yaman Akdeniz, Associate Professor, Human Rights Law Research Center, Faculty of Law, Istanbul Bilgi University.

Executive Summary

The following survey was commissioned by the office of the OSCE Representative on Freedom of the Media. It analyzes Law No. 5651, widely known as the Internet Law of Turkey which has served since 2007 as the basis of a mass blocking of websites in Turkey. The report offers recommendations on how to bring the law in line with international standards protecting freedom of expression. The aim of the survey is to provide a useful tool to the Turkish authorities in their current efforts to reform the much-debated legislation.

The Turkish government enacted Law No. 5651, entitled Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication, in May 2007. The enactment of this law followed concerns about defamatory videos available on YouTube involving the founder of the Turkish Republic Mustafa Kemal Atatürk, combined with increasing concerns for the availability of child pornographic, and obscene content on the Internet, and websites which provide information about suicide, or about illegal substances deemed harmful or inappropriate for children.

Since then, up until December 2009, access to approximately 3700 websites have been blocked under Law No. 5651. This includes access to a considerable number of foreign websites- including prominent sites such as YouTube, Geocities, DailyMotion, and Google- that have been blocked in Turkey under the provisions of this law, by court orders and administrative blocking orders issued by the Telecommunications Communication Presidency (TIB). Similarly, websites in Turkish, or addressing Turkey related issues have been subjected to blocking orders since Law No. 5651 came into force. This is particularly prevalent in news sites dealing with south-eastern Turkey, such as Özgür Gündem, Keditör, and Günlük Gazetesi. However, Gabile.com and Hadigayri.com, which combine to form the largest online gay community in Turkey with approximately 225,000 users, were also blocked. Furthermore, access to popular web 2.0 based services such as Myspace.com, Last.fm, and Justin.tv have been blocked on the basis of intellectual property infringement.

This study therefore provides a review of the implementation and application of Law No. 5651, and includes an analysis of the current legal provisions under Law No. 5651, an analysis of the Law’s application by the courts and by TIB, an assessment of related Internet website blocking statistics, the identification of the legal and procedural defects of Law No. 5651, and an assessment with regards to Article 10 of the European Convention on Human Rights.

The detailed study shows that the impact of the current Turkish regime and related procedural and substantive legal deficiencies are widespread, affecting not only the freedom to speak and receive information, but also the right to receive a fair trial, so far as blocked websites are concerned.
The study further shows that lack of judicial and administrative transparency, with regard to blocking orders issued by the courts and TIB, continue to be a major problem. Furthermore, the fact that TIB has not published the blocking statistics since May 2009 is a step backwards.

As this study outlines, at least 197 court ordered blocking decisions were issued outside the scope of Article 8 of Law No. 5651. As of December 2009, the extent of this breach and blocking remains unknown, as TIB did not publish the blocking decisions beginning in May 2009.

The study argues that there could be a breach of Article 10 of ECHR if blocking measures or filtering tools are used at state level to silence politically motivated speech on the Internet, or the criteria for blocking or filtering is secret, or the decisions of the administrative bodies are not publicly made available for legal challenge. Based on such concerns, and ongoing censorship of the YouTube website since May 2008, an appeal has been lodged with the European Court of Human Rights by INETD (The Society for Internet Technology). INETD challenged the YouTube blocking order issued by the Ankara 1st Criminal Court of Peace having exhausted all the possible national legal remedies.

As will be argued in this study, blocking orders issued and enforced indefinitely on certain websites could result in “prior restraint”. In this connection, it is argued that prior restraint and bans imposed on the future publication of entire newspapers, or for that matter websites such as YouTube, are incompatible with the European Convention standards.

Based on legal and procedural deficiencies related to Law No. 5651 practice, the study will conclude that the government should urgently bring Law No. 5651 in line with OSCE commitments and other international standards on freedom of expression, independence and pluralism of the media, and the free flow of information. If kept in its present form, the law should be abolished. It will be argued that the government should commission a major public inquiry to develop a new policy which is truly designed to protect children from harmful Internet content while respecting freedom of speech, and the rights of Turkish adults to access and consume any type of legal Internet content.

FT.com / Media – Turkey to face European Court on YouTube ban

By David O’Byrne in Istanbul
Published: November 30 2009 16:57 | Last updated: November 30 2009 16:57

Turkey’s controversial censorship of the internet video sharing site YouTube is to be challenged in the European Court of Human Rights, a Turkish internet users group announced on Monday.

According to Mustafa Akgul, head of Turkey’s Society for Internet Technology, the society has taken the step having exhausted all legal avenues in Turkey to force the lifting of the ban, which was imposed in May 2008.

‘Our first case asking for the ban to be lifted was rejected on the grounds that we should have opened it within one week of the ban being applied, a ruling which was repeated by a higher court,’ said Mr Akgul.

‘Neither court actually listened to our objections to the ban, which are that it infringes freedom of expression and that the process is completely arbitrary,’ he said, adding that most bans have been imposed simply as a result of random complaints to Turkey’s Telecommunications Authority.

Mr Akgul explained the authority then automatically imposes the ban via an extra-judicial process in which no one is invited to submit a defence, and no details are published of the reasoning behind the ban which is indefinite and not subject to appeal.

Mr Akgul said expects the European Court process to take around three years but confirms that the ban inconveniences few internet users in Turkey as most have discovered that all banned sites can easily be accessed by changing their computer’s internet access settings or by using internet proxy sites such as Vtunnel.com.

Those using such ruses apparently include Recip Tayyip Erdogan, Turkey’s Prime Minister, who last year responded to a question from a journalist concerning the ban by pointing out that if he could access the site, so could everyone else in Turkey.

YouTube was first blocked in Turkey in 2007 when a court ordered the telecommunications authority to ban the site for hosting videos insulting the founder of modern Turkey Mustafa Kemal Ataturk, a crime which carries stiff penalties in Turkey.

YouTube’s owners Google responded by agreeing to block access to any videos in breach of Turkish law to anyone accessing them from a Turkish IP address – a move which saw the ban temporarily lifted.

However the ban was re-imposed when Google refused to accede to the courts demands that the videos should be blocked throughout the world in order to ‘protect the sensitivities’ of Turks living in other countries.

As Turkey’s telecommunications authority publishes no details of its rulings no one is sure exactly how many web sites have been banned in Turkey.

But YouTube is far from alone with some estimates of the number of banned sites running into the tens of thousands.

Banned sites include those accused of sharing recorded music, those accused of hosting child pornography, sites hosting blogs accused of containing material which breaches Turkish law and, curiously, the home page of English comedian and folk singer Richard Digance, whose crime may or may not be having penned a poem entitled ‘The Turkey’, lamenting the fate of the Christmas Turkey.