Turkey could face charges at European court over restrictions

30 November 2008, Sunday, AYŞE KARABAT, ANKARA

Internet restrictions are against European Union norms and Turkey could face charges at the European Courts for violating the freedom of expression, experts warn.

Internet restrictions are against European Union norms and Turkey could face charges at the European Courts of Human Rights for violating the freedom of expression, according to Kerem Altıparmak and Yaman Akdeniz, authors of the book ‘Restricted Access,’ which assesses Internet content regulation and censorship in Turkey by providing an overview of the current legislation from a critical perspective.

Altıparmak, an assistant professor responsible for a number of projects carried out by Ankara University’s Human Rights Center, claims Law No. 5651, which regulates publications on the Internet, is worse than the infamous Article 301 of the Turkish Penal Code (TCK).

Article 301 previously forbid ‘insulting Turkishness,’ and has now been slightly modified to instead criminalize ‘insulting the Turkish nation.’ It is this article under which novelist Orhan Pamuk and many other writers and journalists have been prosecuted. Recent reforms also reduced the maximum sentence under Article 301 to two years and introduced the requirement that cases over violations of the law must be authorized by the Justice Ministry but, for many human rights activists, its existence remains an injustice. The other co-author, Akdeniz, is a senior lecturer at the School of Law at the University of Leeds and founder of the UK-based Cyber-Rights.org.

Akdeniz and Altıparmak argue that Turkey’s current Internet regulations are not only procedurally flawed and designed to censor and silence political speech, but also contradict the right to privacy and fair trial. Their book, published with help from the Human Rights Joint Platform (İHOP) and available in English at http://privacy.cyber-rights.org.tr, assesses how the current regulatory systems work and how Web sites, predominantly situated outside Turkish jurisdiction, are blocked by court and administrative orders by giving examples. The book also analyzes blocking orders that fall outside the scope of the new legislation.

The authors point out that over 1,000 Web sites are currently blocked in Turkey through court decisions and administrative blocking orders. The majority of these are associated with the problematic Law No. 5651.

‘Clearly the current regime, through its procedural and substantive deficiencies, is designed to censor and silence speech. Its impacts are wide, affecting not only the freedom of speech but also the right to privacy and fair trial. It has been reported that prosecutors have even demanded that politicians widen the scope of the law to include insults, defamation and terrorism. This antiquated approach remains unacceptable in a democratic society,’ they write.

Akdeniz and Altıparmak suggest that, as a result of cultural, historical and socio-political diversity, there will inevitably be divergent approaches to the growth and governance of the Internet in different European societies. For example, while the German and French governments have political fears and sensitivities about the use of the Internet by Neo-Nazis, the United Kingdom takes a more relaxed attitude to the dangers of racism but, conversely, has a long cultural tradition of suppression of sexually explicit material.

‘On the other hand, the Turkish government may be more concerned about defamatory statements made in relation to state officials and politicians, other values related to the state and the dissemination of racist and terrorist propaganda. No doubt, those concerns must not lead to the violation of international standards for the protection of freedom of expression in democratic societies,’ the book argues. It also analyzes the legal responsibilities of various actors, including content providers, hosting companies, Internet service providers (ISPs) and Internet cafes. The book contains an overview of international developments with regard to Internet content regulation at the level of the European Union and the Council of Europe.

Akdeniz and Altıparmak argue that Law No. 5651 was rushed through Parliament just before the Parliament was dissolved for the 2007 general elections and that it had not received broad public support before or after its enactment. Universities and experts, including bar associations, were not consulted about the bill, either.

The authors point out that Web sites can only be blocked if they commit crimes listed under Article 8 of Law No. 5651: encouraging suicide, sexual exploitation of minors, encouraging drug use, supplying harmful substances, obscenity, providing a forum for gambling and prostitution. Web sites may also be banned under other laws, such as the Law on Intellectual and Artistic Works. After examining the many instances of Web site bans over the past year, Altıparmak and Akdeniz suggest that many of the blocking orders that have been issued are actually against the law.

‘It is unlawful for the courts, judges and public prosecutors to issue blocking orders and precautionary injunctions outside the scope of these two provisions. Based on this view, blocking orders issued outside the scope of these provisions should be lifted by the courts that issued the orders in the first place,’ they claim.

Aside from the issue of the law itself, blocking Web sites is simply an inadequate method for combating illegal content, the authors argue. ‘Blocking as a preventative policy measure has been explicitly dismissed within the context of terrorist use of the Internet at the level of the European Union. Furthermore, circumvention technologies are widely available, and the filtering and blocking mechanisms and methods currently used in Turkey are easy to circumvent even for inexperienced Internet users. The futility of the current blocking measures is evidenced by the fact that YouTube.com was the 16th most accessed site in Turkey according to the alexa.com Web site on Aug. 18, 2008, almost three months after the latest blocking order was issued,’ the writers point out.

Bans damage democracy

They note that all of Turkey’s site bans use the same technology. ‘The blocking orders for them 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. Therefore, Law No. 5651 and its implementation do not meet necessity and proportionality tests envisaged under the Constitution and developed by the European Court of Human Rights. No alternative options for content regulation were considered by the legislators while drafting Law No. 5651,’ the writers indicate.

The authors point out that political speech has been strongly affected by the implementation of Law No. 5651. In addition to a number of opposition news Web sites, blocking useful communication sites such as Geocities, YouTube and WordPress has shut off access to alternative views. ‘More importantly, since the banning reasons of political Web sites are not known, we reach the conclusion that the blocking orders are often politically motivated to silence speech on the Internet,’ they argue.

Akdeniz and Altıparmak note that the law was initially designed to protect children from illegal and harmful Internet content. However, the current policy does not even come close to achieving the government’s goal of protecting children.

‘We believe that Law No. 5651 should be abolished. The government should instead 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 Internet content. No doubt, the new initiative should be carried out in a transparent, open, and pluralist way,’ the authors suggest.

Altıparmak and Akdeniz also write that training and detailed guidelines for judges and public prosecutors are necessary to avoid some of the problems caused by the current legal provisions. They note that the transparency and openness of court decisions are very important. They write that when a Web site is blocked the only thing that the users see on the page is a short notice saying, ‘Access to this page was blocked by a court decision.’

The authors conclude: ‘Without a doubt, court issued blocking decisions and the reasons for the decisions should be made public so that the public as well as the content and Web site operators are better informed about the blocking decisions. Such decisions can then be disputed or challenged if necessary. Otherwise, in the absence of transparency, we are required to become like the three wise monkeys and abide by the proverbial principle to see no evil, hear no evil and speak no evil and trust the government and its administrative organs with regards to what is suitable for us to view, read and access on the Internet.’