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.