Criminal law expert Professor Hasan Sınar asserts that besides containing no measures to prevent the spread of false information on social media, Turkey’s “disinformation” law contradicts the fundamental principles of criminal law

 

HİKMET ADAL

 

It was 18 October 2022 when President Recep Tayyip Erdoğan ratified a controversial law comprising 40 articles, which the Justice and Development Party (AKP) government claimed would serve to “combat disinformation.”

 

The first section of the law contained regulations on defining news websites as periodic publications and on press cards, while the second section added a new provision to the Turkish Penal Code (TCK) under Article 217/A, criminalizing “publicly disseminating misleading information” to fight against the spread of “fake news” and “disinformation.” The public, journalists and opposition lawmakers had strongly objected to the bill. The punishment foreseen for those committing this crime is between one to three years of imprisonment.

 

What does Article 217/A stipulate?

 

(1) A person who publicly disseminates false information related to the internal and external security, public order and general health conditions of the country in a manner that could disturb the public peace and with the sole intention of spreading concern, fear and panic among the people is punishable by imprisonment between one to three years.

 

(2) If the act is committed by concealing their true identity or in the framework of organizational activities, the punishment foreseen in paragraph 1 above is increased by one half.

 

As of today, a year has passed since the law came into effect. In the one-year period during which the law on “disinformation” was in force, at least 24 journalists faced judicial harassment in the form of investigations, detentions, imprisonments and otherwise being made subject to trial on allegations based on the law. Court cases were filed against 14 journalists. Some faced more than on investigations. Four journalists were detained, three journalists were arrested, and five journalists were put on trial. Some of them are still on trial.

 

Nine of the journalists who were investigated, questioned by public prosecutors, detained or put on trial were targeted due to their reporting or social media posts on the deadly earthquakes of 6 February 2023.

 

Prof. Sınar: It is an indicator of the state of freedom of expression

 

According to Professor Hasan Sınar, lecturer in criminal law at Altınbaş University, the investigations, trials and arrests of journalists on allegations of “spreading disinformation” is a significant indicator of what has become of the state of freedom of expression in Turkey.

 

Sınar said that according to European Court of Human Rights (ECtHR) statistics, Turkey lags behind all 47 member states in terms of the freedom of expression, adding that the Constitutional Court’s case-law already contains significant problems concerning the freedom of expression.

 

According to Sınar, the law in question should never have been passed, because there are significant problems in Turkey concerning reporting on politicians, the scope and limits to the right to criticism. “Turkey has never been in a good position concerning the freedom of expression,” Sınar said, adding: “In practice, types of crime such as ‘insult,’ ‘insulting the president’ and ‘inciting the people to hatred and enmity’ are already easily politicized.” According to Sınar, Turkey should approach the law on “disinformation” with the existing significant problems in this field in mind: “Turkey is not a country where words are taken lightly. For example, in countries like the United States, in countries following the Anglo-Saxon system, there is no act that is categorized as ‘criminal defamation.’ You may use severe swearwords against politicians. The police, the prosecutor or the courts will not come after you. At most, and in exceptional cases, a politician who has been hurt could sue you for damages. But in Turkey, since August 2014, when Erdoğan was elected president, more than 200,000 investigations have been filed on the allegation of ‘insulting the president.’”

 

The law contains no measures to prevent disinformation

 

Sınar asserted that while social media has now become a very significant part of life, it is a fact that as a source of information it includes a lot of disinformation. Nevertheless, he added that the method to combat disinformation is not to use the means of criminal law: “Criminal law is built on the fundamental principle of ultima ratio, that is, it is referred to as a ‘last resort.’ Criminal law only comes into effect when the state is unable to produce solutions through measures available to other branches of the law and that the matter in question has become a dead-end.”

 

Underlining that the law on “disinformation” does not contain any measures to prevent disinformation on social media, Sınar said: “It directly defines a type of crime with no other previous effort. Most importantly, the content and scope of this new type of crime contradicts the fundamental principles of criminal law. The most fundamental principle of criminal law is the principle of legality of crimes and punishments. The most basic offshoot of the principle of legality is the principle of legal certainty, which means that under the rule of law, legal rules should be foreseeable. It should be clear from the beginning to whom and how they will apply. The law should clearly and with certainty state what constitutes a crime and what does not. And everyone should understand the same from what is stated. Article 217/A of the Penal Code talks about ‘false information.’ But who decides whether the information is false?”

 

The government may use it to silence opponents

 

Sınar provided an example, recalling contradicting numbers in inflation figures published monthly by the Turkish Statistics Institution (TÜİK), the Inflation Research Group (ENAG) and the Istanbul Chamber of Commerce (İTO). Stating that figures by the three organizations never match up, Sınar said: “So, if we take TÜİK data to be true, then ENAG and İTO have to be spreading disinformation, right?” Referring to the part of the provision that reads “in a manner that could disturb the public peace,” Sınar said that upon a complaint, an investigation or a court case could be launched against persons reporting on ENAG or İTO data or sharing them on social media. “This is entirely possible. It is inevitable that immediate trials and investigations should follow.”

 

Giving another example from the case against the pop singer Gülşen Çolakoğlu, Sınar said that upon a complaint to the Presidency’s Communication Center (CİMER) regarding an onstage quip Çolakoğlu had made about students and graduates of religious high schools, she was arrested on suspicion of “inciting the people to hatred and enmity or denigration” and was sentenced to 10 months of imprisonment. Sınar said that Article 216 of the Penal Code stipulates sentencing “in the event of emergence of a clear and imminent danger to public security” and added that the court had not adhered to the law: “They tried Gülşen Çolakoğlu without a care and convicted her.”

 

Sınar continued: “Similarly, there are no mechanisms in place that can prevent the government from using this piece of legislation on ‘disinformation’ to suppress people who are opposed to the government. In any case, criminal law measures should not apply at all in this field. If they had to apply, if criminal law measures were sought as a last resort, then the type of crime should not have been defined so ambiguously. It should have been done in accordance with the principle of legal certainty.”

 

Sınar pointed out the significance of the Constitutional Court’s assessment of the provision and warned that when convictions arising from the said article are brought before the ECtHR, the Strasbourg court will find Turkey guilty of free speech violations.

 

Disinformation should be reduced through self-regulation

 

Sınar proposed a solution regarding methods of combating disinformation: “What we call disinformation is natural on social media. The best way to prevent it is through media literacy. If that fails, then there are self-regulation mechanisms. There are examples of this around the world, and in Turkey. There are [fact-checking] organizations such as teyit.org and Doğruluk Payı. This type of websites should be more widespread. Disinformation should be reduced through means of self-regulation that comes into being and is proven to be trustworthy within social media itself and which earns its prestige through transparency. Recently, the Presidency of Communications has taken up this task, but this decision was a mistake. How objective can an organization be when it is attached to the executive branch? This matter should be solved within the [media] sector, within the social media industry and not through state pressure. The state should only provide the necessary contribution for the industry to solve the issue itself.”

 

Pressure could not be sustained

 

Sınar thinks that the public resisted well at the time the “disinformation” bill was brought before the Turkish Parliament. He thinks that the proposal led to an uproar and the government had to initially back down. “But,” he added: “We need to be self-critical. We need to have more power to fight against initiatives such as this that can be against the interests of the public and harm society, be able to stop the political establishment and make full use of the necessary channels. The proposal was shelved for a while due to public pressure, but the pressure could not be sustained. Opponents of the law could not act in a manner that would have dissuaded the political establishment completely. There needs to be more effort to protect the rule of law and the society against the unlawful interventions of the political establishment.”

 

A brief summary of investigations, detentions, arrests and trials under Article 217/A

 

Investigations

 

- When an investigation was launched against Tunceli Emek newspaper’s Publisher Hüsniye Karakoyun and Managing Editor Mahmut Karakoyun for their report headlined “Tunceli’de beş adet portatif tuvalet için resmi açılış töreni düzenlendi” (“Official opening ceremony held for five portable toilets in Tunceli”) the law had not even entered into effect. After the law was ratified, the prosecutor’s office decided not to prosecute on the grounds of “public benefit in the publication of the news item.”

 

- The Bakırköy Chief Public Prosecutor’s Office launched an investigation into the article titled “Bitmeyen Çıplak Arama” (“Unending Full Body Search”) by Aslıhan Gençay that appeared in the 29 December 2022 edition of GazeteDavul. Gençay gave a statement to the police on 25 March 2023. It was decided not to prosecute.

 

- Journalist Oktay Candemir, who wrote about the salary of the trustee appointed to the local İpekyolu Municipality in Van was investigated for “disseminating misleading information.” On 27 April 2023, Candemir gave his statement, accompanied by his lawyer. In his statement, Candemir said that salaries of public officials were a matter of close interest to the public.

 

- Emre Orman was investigated for his social media reporting on the statement by the Progressive Lawyers Association (ÇHD) on the death of a person in gendarmerie custody following the earthquakes of 6 February. On 2 May 2023, the prosecutor closed the investigation on grounds of “freedom of the press.”

 

- Tele 1 Editor-in-Chief Merdan Yanardağ is another journalist who faced an investigation. Yanardağ was called to give a statement to the prosecutor’s office for a social media post in which he claimed a group had arrived in Turkey to assassinate Republican People’s Party (CHP) Chairperson and presidential candidate Kemal Kılıçdaroğlu.

 

- Medya Koridoru publisher and Editor-in-Chief Canan Kaya faced an investigation due to her earthquake broadcast on the YouTube channel on 13 February 2023. It was decided not to prosecute.

 

- Mezopotamya News Agency reporter Yüsra Batıhan is another journalist who was investigated on suspicion of “disseminating misleading information” over her social media posts following the earthquakes of 6 February. Batıhan, who included data from the Peoples’ Democratic Party (HDP) Crisis Coordination Center and impressions of journalists in the earthquake-affected region gave a statement as part of the investigation launched by the Ankara Chief Public Prosecutor’s Office.

 

- BirGün newspaper reporter İsmail Arı has faced two separate investigations. The first was due to a report he wrote a week before the earthquakes of 6 February, which was titled “Ev değil resmen ölüm satıyorlar! (“They are not selling houses, they are selling death itself!”). The report was about the construction of 96 residential units and nine retail units by the local Güngören Municipality on land the Istanbul Metropolitan Municipality had objected to for being marshy ground. The AKP-led Güngören Municipality filed a complaint. In the investigation, the prosecutor decided not to prosecute. The second investigation against Arı was launched over a report about the identification of high levels of arsenic in Kızılay (Turkish Red Crescent) brand mineral water and upon the complaint of Kızılay. The Press Crimes Investigation Office of the Istanbul Chief Public Prosecutor’s Office decided not to prosecute.

 

- Another journalist who faced an investigation was Mir Ali Koçer, who visited many of the earthquake affected regions and reported on the general circumstances. Koçer had to give a statement to the Diyarbakır Police Department due to his video reporting recorded during search and rescue work.

 

- Gazete Duvar columnist Önder Algedik gave a statement on 15 March 2023 upon a complaint by Ankara Mayor Mansur Yavaş. Yavaş filed a complaint against Algedik for sharing objections to and news about road construction in Hacettepe woodland.

 

- Serhat News Editor-in-Chief Sıddık Güler gave a statement at the Van Police Department on 5 July 2023 on suspicion of “disseminating misleading information” over a report published on the website on 19 June 2023 concerning an assault incident which allegedly took place at the Van Provincial Directorate of Culture and Tourism. The press had reported on the alleged assault by Provincial Director Erol Uslu against Deputy Director Şenay İvelik Dönmez in June. Uslu rejected the allegation, while Dönmez filed an official complaint with the Chief Public Prosecutor’s Office.

 

- Mezopotamya News Agency reporter Ahmet Kanbal came under investigation on 8 April 2023 after reporting on the killing of HPG members Musa Kahraman and Lokman Görgün in the Ömeryan region of Mardin. The prosecutor’s office decided not to prosecute on the grounds of lack of evidence requiring the filing of a criminal case.

 

- The Hakkâri Chief Public Prosecutor’s Office launched an investigation against Artı TV presenter Onur Öncü over his social media post in which he claimed that the votes cast for the Green Left Party (YSP) in the provinces of Hakkâri, Diyarbakır and Şanlıurfa had been recorded as being cast for the Nationalist Movement Party (MHP) in the general election. Öncü gave a statement on 14 September 2023.

 

Detentions

 

- Mezopotamya News Agency (MA) reporter Mehmet Güleş was detained, along with a volunteer he was interviewing about the search and rescue work in the Bağlar district of Diyarbakır on 8 February 2023. The prosecutor who questioned Güleş and the search and rescue volunteer referred both to a Criminal Judgeship of Peace seeking their release under judicial control measures and charged them with “publicly disseminating misleading information.”

 

- Journalist Gökhan Özbek, owner of 23 Derece, was detained at his home on 1 March 2023. His lawyer Gizay Dulkadir said Özbek was charged with “publicly disseminating misleading information.” Özbek was released after giving his statement.

 

- Journalist Serdar Akinan, who reported on claims made by Muhammed Yakut on the YouTube channel “Delilerin Delisi” was detained at his home in the Ayvacık district of Çanakkale on 19 April 2023 upon the instructions of the Istanbul Chief Public Prosecutor’s Office. Article 217/A is among the charges he faces. Akinan was taken to Istanbul, where he appeared before the court after giving a statement and was released by the court with a ban on traveling abroad and on condition of signing his name two days a week at the police station.

 

- Journalist İlknur Bilir, who resides in Germany, was detained at Sabiha Gökçen Airport, where she arrived in the evening of 15 September 2023. Bilir, whose passport was confiscated at the police control point, was later taken to the airport police station. Bilir was released after giving a statement to the prosecutor. Bilir was detained over her social media posts after the earthquakes.

 

Trials

 

- A court case was filed against Ruşen Takva over his reporting on the MHP Hakkari Provincial Chair’s involvement in an armed assault. The journalist, who stood trial at the Hakkâri 1st Criminal Court of First Instance, was acquitted on the grounds that legal elements of the impugned crime had not formed.

 

- Oktay Candemir was investigated following his reporting on sexual assault on a 16-year old girl in Muradiye, Van. A court case was filed following the investigation. The first hearing of the trial was held on 6 June 2023.

 

- Journalist Fırat Bulut was detained at the Ankara Esenboğa Airport on 9 March 2023 upon his return from the earthquake zone where he was reporting. Bulut was released the day after. However, a court case was filed against him over his social media posts about the earthquake. The indictment was accepted by the Elbistan 2nd Criminal Court of First Instance. The first hearing of the trial will be held on 19 October 2023.

 

- A court case was filed against Hasan Sivri over news footage he recorded in Antakya right after the earthquakes of 6 February and which he shared on his social media account on 23 February on the charge of “disseminating misleading information.” The first hearing will be held at a Criminal Court of First Instance in Ankara on 12 December 2023.

 

- A court case was filed against Mezopotamya News Agency reporter Ahmet Kanbal on the charge of “disseminating misleading information” over his social media posts on allegations regarding a missing ballot box in Mardin. Kanbal will stand trial at the Mardin 1st Criminal Court of First Instance.

 

Arrests

 

- The first journalist to be arrested under the “disinformation” law was Sinan Aygül, president of the Bitlis Journalists Association. Aygül was arrested over his reporting about alleged abuse involving public officials. Aygül was arrested on 14 December 2022 and released eight days later. The Tatvan Chief Public Prosecutor’s Office prepared an indictment against Aygül. At the end of his trial at the Tatvan 1st Criminal Court of First Instance, Aygül was sentenced to one year of imprisonment. While the court reduced the sentence by two months, it did not defer the verdict. Upon Aygül appealing against the verdict, the Van Regional Court of Justice unanimously rejected his appeal on 26 May 2023.

 

- Local journalists Ali İmat and his brother İbrahim İmat, who work in Osmaniye, were arrested on 26 February 2023 over their social media posts concerning claims that tents sent as aid to earthquake survivors were being held up. The journalists, who were held at Osmaniye Closed Prison, were released on 30 March 2023.