Wednesday, 26 March 2014

Turkey’s Internet Law: Another Chapter towards Absolute Censorship that Dooms EU Accession?

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By Hendrik Müller (vol. 7, no. 6 of the Turkey Analyst)

Turkey recently promulgated a new Internet bill and swiftly used it to block access to the micro-blogging platform Twitter, and subsequently Youtube. In line with a longer history of fundamental rights violations, this step marks another chapter in Turkey’s recent path towards absolute censorship. In light of international and regional commitments, however, Turkey is increasingly at odds and may even risk forsaking its EU membership candidacy.

 BACKGROUND: On February 18, Turkey’s President, Abdullah Gül signed a controversial Internet bill into law amid anticipation of amendments that would render the bill less ‘problematic’.  Despite the approval of such amendments by the Turkish Parliament on February 26, the new law was promptly used to block access to Twitter on March 20.  While the order of the Twitter ban was handed a stay of execution by an Ankara court to determine its validity, the act in itself provides demonstrative insight into the powers that the new Internet law provides the ruling Justice and Development Party (AKP) and how it intends to use it.

Effectively, the law permits authorities to limit access to the Internet and monitor the online activities of its citizens. More specifically, it empowers the president of the Telecommunications Directorate (TİB), who is directly appointed by the government, to not only access an individual’s traffic data, but also to block access to certain content on the internet.  While such decisions are subject to court review, the veracity and impartiality of this remains questionable in light of the government’s ever-increasing control over the judiciary. This is the case not least because a recently adopted bill bestows the government with increasing influence over the judiciary.  Additionally, the law forces Internet service providers to become members of a newly created association that, effectively, will serve to facilitate the execution of content-blocking orders.  Service providers that do not become a member of this association will be prohibited from doing business in Turkey, while those that do not carry out its blocking orders are due to face repercussions.

The government’s justification for such measures is rooted in the argument that they serve to “protect the family, children and youth from items on the Internet that encourage drug addiction, sexual abuse and suicide.”  While Ankara’s recent actions fall short of such intent, it does harmonize with a path that was struck in 2007, when it adopted its first internet censoring legislation.  The developments since then can be broken down into four general phases. 

The first phase began in May 2007 when, following the appearance of defamatory videos of Atatürk on YouTube, the government enacted Law No. 5651 that enabled it to block access to websites containing ‘harmful content’.  Ultimately, however, the provisions were used to block an ever greater variety of contents, rendering a staggering total of approximately 40,000 websites inaccessible in Turkey today.  This places it in a global position second only to China on terms of banning Internet content, according to the Economic Policy Research Foundation of Turkey (TEPAV).

The Second phase expanded this practice towards a ‘filtering policy’ that the Technologies and Communications Board (BTK) introduced in 2011 and 2012.  This meant that, for example, instead of blocking access to particular YouTube video pages, access to the entire website was blocked for an 18-month period.  While the policy of establishing and maintaining a website-filtration database remains ambiguous, justification was, once more, sought on behalf of the protection of its citizens.

Thereafter, a third phase developed in which authorities began targeting specific individuals for their allegedly blasphemous and AKP-critical activities on social media platforms.  The cases of Fazıl Say, a Turkish pianist who was handed a 10-month prison sentence, and Mahir Zeynalov, an Azerbaijani journalist who was forced to leave the country under threat of deportation, are examples of this, respectively.

Finally, triggered by last summer’s Gezi Park protests and the December 17 corruption investigations, a fourth, and current, phase has come into effect.  Its culmination, thus far, is embodied by the new Internet legislation. 

In light of these developments, one is hard-pressed to maintain the argument that the government’s policy sincerely serves the protection of its citizens. Instead, an increasing practice of violating fundamental rights becomes ever more evident. This policy contrasts with Turkey’s commitment towards the United Nations’ International Convention on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). It also increasingly stands against its process of conforming with EU human rights standards as part of its EU accession process.

IMPLICATIONS: Rupert Colville, spokesman for the UN High Commissioner for Human Rights, sounded alarm that these measures “fly in the face of freedom of expression and right to privacy.” These rights and freedoms are set out in Articles 17 and 19 of the ICCPR respectively, and are binding on Turkey after it ratified the Convention in September 2003.

Accordingly, the right to privacy dictates that individuals, including their ‘correspondence’, shall not be “subject to arbitrary or unlawful interference.” Thus, while the new Internet law seeks to legitimize an interference with correspondence, by enabling the TİB to access an individual’s traffic data, on a domestic level, it remains unlawful by international standards.  Additionally, the expansive reach of influence of Turkey’s executive likely renders any decision on the basis of this legal framework arbitrary. Article 19 dictates that the freedom of expression belongs to everyone and that it may not be interfered with.  It includes the freedom to “seek, receive and impart information and ideas of all kinds” through any form of media.

Contrary to the right to privacy, however, Article 19 of the ICCPR concedes that this freedom carries special duties and responsibilities that may subject it to restrictions for the “respect of the rights and reputations of others” and for the “protection of national security, public order, public health or morals.”  While such wording leaves significant room for interpretation, and thus also potential abuse, the UN Human Rights Committee adopted ‘General Comment 34’ which clarifies that states that invoke any restriction must demonstrate a direct connection with the perceived threat, as well as its necessity and proportionality. It remains highly doubtful that Turkey’s Internet bill – and consequent actions – satisfy this threshold. 

Incorporated into the freedom of expression is the freedom of media, which has already been subject to increasingly severe self-censorship under the rule of the AKP. This is best reflected by reference to statistical assessment. According to the Committee to Protect Journalists, Turkey ranks first in its 2013 census of jailed reporters, weighing in at 40 detained individuals in comparison to China’s 32.  Additionally, it ranks 154th out of 179 countries in Reporters without Borders’ ‘Press Freedom Index’ of the same year; down six places from 2012. Considering these figures as a backdrop to current developments, it can be discerned that Turkey is heading further down a road that will see it as falling increasingly short of its commitments to international law.

In addition to its dedication for human rights internationally, Turkey also vowed to pursue regional support for human rights by ratifying the ECHR in May 1954.  While the contents of the right to privacy and freedom of expression effectively mirror the obligations of the ICCPR, Turkey has been, and continues to be, subject to the scrutiny of the European Court of Human Rights a fate that it is spared elsewhere.  In this regard, it is particularly noteworthy that, in December 2012, the court ruled that Law No. 5651 was incompatible with the ECHR.  To this date, however, the government has yet to implement this ruling.  Thus, despite being subject to judicial review in Europe, Turkey behaves as if it were free from constraint or repercussion.

Turkey is, however, not totally free from effective accountability.  Should it still value and seek to accede to the EU, its accession negotiations may prove to be one of the few frontiers that could persuade it to reconsider its current policy.  According to the ‘Copenhagen criteria’, which must be satisfied by every new candidate before being granted access to the Union, Turkey must agree to adhere to a variety of EU standards set out in 35 different policy-field ‘chapters’; also known as the acquis communautaire.  So far, only one chapter, on ‘science and research’, has been completed, while 14 others are currently pending.  Moreover, Chapter 23, on judiciary and fundamental rights, has yet to be opened.  It requires that Turkey, among other things, “ensure respect for fundamental rights ... as guaranteed by the acquis and by the Fundamental Rights Charter.”  Akin to the provisions of the ICCPR and the ECHR, the CFR demands the respect for privacy and the freedom of expression.  It is on the basis of these provisions that Turkey’s Internet bill could yet be subject to some form of effective scrutiny.

Indeed, the European Parliament, in assessing Turkey’s 2013 Progress Report, summarized its findings on March 12 and called for the “full respect for fundamental rights”.  It held that digital and social media are integral to the freedom of expression and ‘media pluralism’ and that, together with the necessity of an independent press for an effective democratic society, they are at the heart of European values.  In light thereof, it expressed “deep concern” at the new Internet law and asked the Turkish government to revise it so as to bring it in line with European standards.  Nevertheless, despite seeing this law as restricting fundamental freedoms, thereby taking Turkey “away from meeting the Copenhagen criteria”, the European Parliament has asked the Council of the European Union to “make renewed efforts” to open negotiations on Chapter 23. This could, ultimately, serve not only as a potential make-or-break scenario for Turkey’s EU candidacy, but could also determine whether Ankara chooses to commit itself to re-establishing its respect for fundamental rights and democracy or whether it prefers to continue pursuing a path of censorship and isolation.

CONCLUSIONS: In line with previous developments, Turkey’s recently adopted Internet bill claims to serve the public interest while the government’s actions on its behalf reflect other, contentious, intentions.  The Turkish government has chosen to add another chapter in its path towards absolute censorship. The Internet bill is clearly in violation of Turkey’s international commitments to fundamental rights.

Turkey does not face effective, international accountability, and it has decided that it can afford to ignore regional judicial scrutiny by the ECHR. However, Turkey stands to incur a heavy cost in terms of its EU accession process if it persists with its present policy.

Hendrik Müller holds a Bachelor's degree in European Law as well as a Master's degree in International Law from Maastricht University.

(Image Attribution: Erdem Civelek)

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The Turkey Analyst is a publication of the Central Asia-Caucasus Institute & Silk Road Studies Joint Center, designed to bring authoritative analysis and news on the rapidly developing domestic and foreign policy issues in Turkey. It includes topical analysis, as well as a summary of the Turkish media debate.

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