With the “Disinformation” law entering in force, there is concern that not only journalists but also ordinary citizens with social media accounts will be put on trial

YILDIZ YAZICIOĞLU, ANKARA

 

A law justified on grounds of “combating disinformation” has taken effect, ushering in a process, in Turkey’s election year, whereby the government will from now on decide what is true and what is contrary to reality in all the content published in the media and on social media.

 

Disregarding the criticisms made by opposition parties, journalists’ organizations and bodies defending freedom of expression, the ruling coalition of the Justice and Development Party (AKP) and the Nationalist Movement Party (MHP) used its majority in Parliament to have the 40-article bill enacted on the night of 13 October. The law is expected to lead to more widespread censorship and self-censorship. It came into effect immediately upon its publication in the Official Gazette on 18 October under the title Law 7418 on “the Amendment of the Press Law and on Some Other Laws” (https://www.resmigazete.gov.tr/eskiler/2022/10/20221018-1.htm).

 

The law adds a new crime to the Turkish Penal Code (TCK) – namely, “publicly disseminating information that is deceptive to the public.” Article 217 of the TCK, as amended by the new law, asserts that, “A person who openly disseminates unsubstantial information regarding the country’s internal and external security, public order and general health with the sole purpose of inciting panic, fear and anxiety among the public in a manner liable to disrupt the public peace shall be sentenced to imprisonment of from 1 to 3 years. Should the perpetrator commit the crime by concealing his/her identity or as part of the activity of an organization, the sentence in the first paragraph shall be increased by half.”

 

This amendment has led to concern that there will be trials targeting not only journalists but also ordinary citizens with social media accounts, since the provision could be implemented against anybody who either creates or shares content in the press or on social media. Should public institutions or organizations make allegations of false information against content in the press and on social media, legal procedures will be set in motion concerning the said content. This may result in lawsuits in which the owner of the content and those who have shared it may face up to 3 years in prison; moreover, this sentence may easily be increased by half.

So, are public organizations and institutions defenders of true information or are they propaganda machines of the government against opposition parties and public opposition? All segments of society other than the supporters of the government – and particularly the main opposition party, the Republican People's Party (CHP) – share the opinion, based on their experiences in recent years, that official statements do not represent the truth. As things stand in Turkey, access to many news items is being banned in response to appeals based on the “right to be forgotten” and “the violation of personal rights,” following the amendment made to the law on the online environment adopted in 2020. As emphasized in the report recently published by the Freedom of Expression Association (https://ifade.org.tr/reports/EngelliWeb_2021.pdf), “thousands of news items and other content, the publication of which would be beneficial to the public, are being censored and therefore destroyed by access restrictions and removal from publication” as a result of decisions implemented on grounds of violation of personal rights.

Under the current circumstances, all eyes are once more on the Constitutional Court. The CHP lodged an application with the court as soon as the law was published in the Official Gazette, demanding first and foremost that the new crime that has been added to the TCK be annulled. Soon, the CHP will also be making a more detailed application calling for the suspension and annulment of the entire law. However, it will be up to the court to decide when it will rule on whether to abolish the new crime and/or the entire law. In other words, until the Constitutional Court reaches a decision, we will all live and learn what information the government considers to be false, and who will be tried and punished as a consequence. In summary, the battle for truth – please take note – has begun.

 

The battle for truth: the Bartın disaster used to justify annulment application

 

While lodging the application with the Constitutional Court, CHP Group Deputy Chairperson Engin Altay gave the example of the debate on the truth about the mine explosion in Bartın on 14 October, in which 41 people died. Altay stated that Turkey is being governed by an authoritarian regime and that the new criminal charge is not really intended to combat deception. “This crime,” he went on, “is based on the desire to seize the monopoly of determining the truth and to create a monopoly of telling lies. For example, Fahrettin Altun (the Director of Communications of the Presidency) has declared all posts shared by people other than ministers and public institutions and organizations to constitute disinformation. Or to give another concrete example, the various statements and reports published in the press based on the audit reports of the Court of Accounts have been described as disinformation by the Turkish Hard Coal Board (TTK), a publicly corporation. I mean, a CHP MP shared the report prepared by the Court of Accounts with the public, but the TTK called it “disinformation.” Fahrettin Altun tweets and says, “I would like to underline once more the importance of disregarding posts about the tragic accident that contain disinformation and of paying attention only to statements made by our ministers in the field and by public institutions.” In other words, Fahrettin Altun is saying: “We will consider all statements not made by me or by government ministers to constitute disinformation.” This is silencing the opposition, the media, the press, and social media. This is them presenting their lies as the truth and depicting the truth as a lie. It is impossible to accept.

 

Will the Constitutional Court decide that the constitution has been violated?

 

The Constitutional Court will now check to see whether there are any deficiencies in the CHP’s application within 10 days. If the application is found to be incomplete, the CHP will be granted at least 15 days to make good the deficiencies. At the end of this period, the court will decide whether to undertake an examination of the merits of the application. If the Constitutional Court accepts the CHP’s application, the process of examining the case file will commence. However, there are no time limits for this process. In the event of applications from the courts concerning the constitutionality of laws, the Constitutional Court must decide in five months. By contrast, in the case of applications lodged by the main opposition party, there is no binding rule concerning the time within which the court must issue its ruling.

 

Assessing the situation for Expression Interrupted, CHP MP and constitutional law expert Prof Dr İbrahim Kaboğlu, who underlined that the proposals were unconstitutional when they were being debated in the Justice Committee of Parliament, noted that the timing of the court’s verdict “is left to the court to decide: just as it can reach a decision within five days if it wishes; it need not make any judgement for months if it does not wish to do so.”

 

Kaboğlu stated that the court should overrule the legislation in line with the CHP’s application. To begin with, he asserted that the crime of “publicly disseminating information that is deceptive to the public” contradicts Articles 2, 13, 25, 26 and 28 of the Constitution since it “excessively limits the freedom of thought and expression and the freedom of the press where this is not required in a democratic society and affects the essence of these rights.” “Secondly,” Kaboğlu continued, “The court must suspend the execution of the law and decide to annul it since it contradicts Article 38 of the Constitution by violating the principle of the legality of a crime. And thirdly, it must do so because it contravenes Article 153 of the Constitution by ignoring decisions made by the Constitutional Court.”

 

Former Constitutional Court President Yekta Güngör Özden said he felt sure that the Constitutional Court would take the election atmosphere into account and argued that it ought to annul the law before the election process begins in response to the CHP’s application. Özden stated that he expected the President of the Constitutional Court and its members to cast their votes in favor of freedoms. In view of the jurisprudence (pilot rulings) of the court, he added that he could see no other legal option besides annulment.

 

AKP: A crime will occur if five conditions are met

 

Critics of the law frequently emphasize that the terms used in the provision creating the new crime, which is now on the agenda of the Constitutional Court, are highly ambiguous. Public institutions and organizations under the control of the government in power will be free to claim that any information shared with the public by the opposition or opponents of the government in society is deceptive to the public. This criminal provision, and especially the use of the term “public dissemination,” means that social media users, and members of the press in particular, could be imprisoned pending trial.While it is possible to be released on probation in Turkey if sentenced for less than a year, persons sentenced on charges of “publicly disseminating information that is deceptive to the public” may be sent to prison due to the high minimum and maximum limits of the penalty set for this offense.

 

AKP Group Deputy Chairperson Mahir Ünal takes a different view. “Where is the censorship here?”, he asks. According to Ünal, five preconditions must be met for an action to constitute a crime. In a press statement, he listed these as “1- The news disseminated must be untrue, 2- It must be related to the country’s security and public welfare, 3- It must be intended to incite panic, fear and anxiety among the public, 4- It must be liable to disrupt public peace, 5- It must be public – i.e., it must reach unrelated persons.”

 

What type of content does the government target on grounds of “verification”?

 

The Directorate of Communications of the Presidency, which is referred to by opposition parties as the “government propaganda institution” and by journalists’ organizations as “an instrument of pressure against journalism,” wasted no time in joining the war for truth.

 

In August, when the bill was still before Parliament, Director of Communications of the Presidency Fahrettin Altun established a Center for Combating Disinformation under İdris Kardaş, an employee of the Turkuvaz Media Group, which is known for its proximity to the government. Altun stated that they had established the center “to combat systematic disinformation campaigns launched against the country.” The opposition pointed out that the Center for Combating Disinformation had been established in contradiction of Presidential Decree 14, which determines the organizational structure of the Directorate of Communications.

 

A “Disinformation Bulletin,” which Altun has referred to as “a powerful tool of our fight for the truth”, began to be published weekly as of October (https://www.iletisim.gov.tr/images/uploads/dosyalar/1-8EkimBulten.pdf).

 

A Twitter account, https://twitter.com/dogrulamaservis, has also been opened and the address is provided in Kardaş’s posts, although it is not named among the accounts of the Directorate of Communications. This Twitter account publishes statements claiming that certain news items and allegations are false or deceptive. The news items that the account denies seem to have been selected from media organizations that are not close to the government, such as the newspapers Sözcü, Birgün and Cumhuriyet and ANKA News Agency. Since August, the account has only published one correction related to any media organization known for its proximity to the government – a local news item from İhlas News Agency (İHA). Notably, the account attempted to refute statements made by CHP Group Deputy Chairperson Özgür Özel and CHP Vice President Veli Ağbaba about the terrorist attack in Mersin. However, the account has not made any comments concerning media organizations close to the government or the news they have published, such as the newspaper Yeni Şafak and its subsequently-denied news item concerning the person who welcomed CHP leader Kemal Kılıçdaroğlu on his arrival in the USA. The account frequently posts items that target Greece over developments concerning refugees.

 

Journalists’ organizations consider a “Truth Commission”

 

Journalists’ organizations have embarked on a joint effort to counter attempts to prevent the publication of news and information about corruption and irregularities under the pretext of combating disinformation. These organizations have come together under the title of the Media Solidarity Group. They issued a joint response to the bill before it became law and are now discussing options for the struggle against what they term the “censorship law” such as the establishment of a “Truth Commission” and the adoption of a joint legal stance and discourse.

 

The new legislation was recently discussed at a session hosted by the Association of Journalists headquartered in Ankara.The meeting was moderated by journalist Nursun Erel, while Vice President of the Association of Journalists Yusuf Kanlı, President of the Parliamentary Reporters Association Kemal Aktaş, Press Council President Pınar Türenç, President of the Journalists Union of Turkey Gökhan Durmuş and a representative of the İzmir Association of Journalist, Macit Sefiloğlu, discussed the steps to be taken. The organizations agreed to act jointly in this struggle.

 

Speakers at the meeting also stressed that the Press Advertising Agency (BİK) has been putting pressure on local media organizations and press associations.

 

In the meantime, Articles 20, 21, 22, 25, 26 and 27 and paragraphs a and b of Article 28 of the new law are to come into effect on 1 April 2023. Consequently, the provisions that bring news websites in Turkey within the scope of the Press Law and include them in the coverage of the BİK will start to be implemented on 1 April 2023.

 

Photo: @mahirunal