With the existing Internet Law already having grabbed internet journalism by the throat, one can foresee that freedom of the press will be rendered meaningless and ineffectual with the new bill

 

SERCAN KORKMAZ*

 

It is no secret that the internet allows for reaching more people at lower cost, obtaining a variety of information from different sources and practical and anonymous individual consumer activity and social interactions. Today, the internet has become the predominant medium for advertising and public relations activities of commercial enterprises; the official statements by state institutions, along with their attempts at supervision and governance of individuals; activities of civil society organisations and various civil opinion groups; and publicity campaigns, announcements and propaganda activities of politicians and political parties. In short, the “new media” order has already become an ever-expanding universe at the centre of our individual and shared lives.

 

According to the Digital 2022 Turkey report published by the research platforms We Are Social and Kepios, there are 69.95 million internet users in Turkey. The same report also underlined that average daily internet usage in Turkey has risen to eight hours.

 

Directly related to this overall transformation, internet journalism has rapidly become the main source of accessing news that audiences benefit from in Turkey and throughout the world. Therefore, with each passing day internet journalism preserving its independent existence and maintaining its pace of development becomes even more vital to the public’s right to information.

 

At this juncture, it is an inevitable development that the states direct their appetite for supervision and regulation, which they view as existentially important, to internet journalism. The first regulation on this subject in Turkey was Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes by Means of Such Publication -- commonly known as the Internet Law -- which came into effect in 2007. After coming into force, it was amended many times with the inclusion of new articles. Even though law makers claimed that it aimed at “tidying up” the internet environment, the impact of the law in practice amounted to limiting the freedom of expression of users and news sites. The internet then gradually became a space where users acted in fear and unease, and in the meantime turned into a far more chaotic environment. For instance, Article 9 of Law No. 5651 allows for the removal of content in cases concerning alleged violation of personal rights. This article worked like a charm for the government, the bureaucracy and big capital; in that almost all published news critical of them was blocked and removed. Judges who ruled for the blocking of access to websites became notary-like authorities giving stamps of approval, instead of fulfilling their judicial duties. Eventually, the Constitutional Court recognised the problems with this particular article and notified Parliament, through a “pilot” judgment that found access blocking orders issued under this provision to be unconstitutional, to amend the law. However, Parliament is yet to take any step to amend it. While it was officially recognised that every past and future ruling blocking access as per Article 9 was against the law, there are clearly no mechanisms in place that could make the judiciary to retract from using it.

 

According to a 2021 report published as part of the EngelliWeb project of the Freedom of Expression Association, 22,554 news items were removed under Article 9 and approximately 23,000 websites were blocked as per Article 8/A by the end of 2020. However, the appetite of the administration for “tidying up” is not sated with blocking access and removing content. The repercussions on freedom of the press emerged as journalists being put on trial, which continue to this day.

 

Especially in recent years, pressure established by the securitised and authoritarian politics in Turkey using the judiciary to achieve its goals has mainly targeted internet journalism and journalists. As such, Law No. 5651 has brought in nothing but censorship of internet news. Yet, the authorities must have been unsatisfied with the results, hence the need to draft another regulation for internet journalism emerged.

 

Grave problems await if the proposal becomes law

 

The idea of regulating internet journalism, which was regularly brought up on the agenda only to lapse into silence each time without conclusion, finally made it to the Parliament in late May in the form of a bill. While the inclusion of internet journalism in the Press Law may sound appealing, if the proposal becomes law as it is, many grave problems may arise.

 

We would be burying our heads in the sand if we were to evaluate this regulation independently of the upcoming general election. Aside from the amendments to the Press Law, Article 29 of the bill which criminalises “openly disseminating false information to the public,” has the potential to make no small amount of trouble for journalists, especially at election times. The proposed law has not yet been discussed in the general assembly of Parliament, and it is not clear whether it will be amended and what may be added to it if so. Whatever the outcome, it is clear that good faith is not in play. For those who are still unconvinced of the gravity of the situation, I would like to take up those parts of the proposal I find significant.

 

The “disinformation” bill requires news websites to publish corrections and responses to reports published. This could be perceived as a step towards protecting personal rights, however the bill requires the correction and the response texts to remain published for a week. While the right to correct and respond in the Press Law applies for once and for a single issue of the publication, the bill requires the correction and response text to stay published on the websites for the considerably long duration of a week. Worse still, the correction and response texts have to be published and stay online even for content which has been blocked or removed by a court ruling, i.e., non-existent. The right to correction and response, which is regulated under the Press Law, is already problematic: in case the judge rules for a correction and response, media outlets then have limited opportunity to appeal. The new heavy-handed regulation could make us long for the days of the Press Law. Heavy administrative fines may be imposed if the correction or response text is not published.

 

The proposed law allows journalists working for internet news websites to apply for press cards, which are however to be issued by the Directorate of Communications of the Presidency. While it is unclear why the Directorate of Communications is deemed to be competent to determine the status of practicing journalists, its discriminatory attitude to journalists working for opposition media outlets is well-known. The proposed law interprets journalism as a civil service position and makes the conditions for issuing a press card extremely difficult. Particularly concerning is the condition not to be convicted of crimes which fall within the scope of the Law on Anti-Terrorism, crimes regarding state secrets and espionage. Given that the opposition media has had enough of its share of such accusations recently and that many journalists in Turkey considered to be among the opposition have been tried and sentenced in some way, I am confident in saying that there will be no improvement in the way journalists are treated.

 

The bill is silent on criminal liability, which may arise due to news content. There is a gap as to who would be held accountable and under which circumstances. According to the Press Law, periodical publications need to have a responsible managing editor. The proposed law does not sufficiently clarify how this requirement will be adapted to internet journalism. It is uncertain how the definition of “owner of the material,” which is mentioned in the Press Law, will apply to internet news and how it will be distinguished from the content provider. This gap will allow the censorship practices under Law No. 5651 that already apply to news websites to continue in exactly the same way.  

 

The bill allows for news websites to publish official advertisements. Predictably, the Press Advertising Agency (BİK) is authorised to decide how the revenues from public advertisements will be shared among the media outlets. We can foresee that the current heavily discriminatory attitude of BİK against critical newspapers will extend to internet news websites.

 

Increase in trials of journalists

 

It is also worth noting that the proposed law makes the litigation time limit as regulated by the Press Law even more punishing for internet journalism. The proposed law starts the time limit to bring charges from “the moment of notification to the prosecutor’s office of the relevant news item.” This trivialises the time of reporting of the news item and allows for an investigation to be launched based on any notification on any date. The same section also adds the ambiguous expression “renewed publication,” which allows for an extension of the statute of limitations for the news item. Given the already numerous trial and investigation files on journalists at prosecutor’s offices and courts, it is not difficult to foresee that the number of files will further increase with this regulation.

 

To this day, many journalists have been tried and sentenced due to publishing news on the internet. While the same news is reviewed under Press Law when published in print media, publishing it on the internet causes the news item to fall under the scope of Law No. 5651, which provides more elbowroom to prosecutor’s offices and courts and results in heavy imprisonment sentences and administrative fines. The proposed law does not address what will happen to finalized cases, which were deemed not to fall under the Press Law, and the resulting failures of justice.

 

The bill requires internet news websites to register their websites as a periodical publication subject to the Press Law by filing an official notification. Provisional Article 4 sets forth a period of three months for parties to accommodate to the amendments to the law. There is no clarification as to what happens next if this period is exceeded. Three months is a short period of time. Why are those who drafted bill in such a hurry?

 

“Acceptable” information

 

One of the most disputed articles of the proposed law is Article 29, which introduces the offence “openly disseminating false information to the public” to the Turkish Penal Code. We could call it the black hole regulation/law. It denotes a desire to pass such a law as to allow for every piece of unfavourable news to be banished into a blackhole and its indefinite darkness. Why, you may ask. The proposed article of the law contains the following definition: “a person who openly disseminates false information regarding the country’s internal and external security, public order and general health with the purpose of inciting unease, fear and panic among the public in a manner amenable to disrupting public peace.” Leaving aside the fact that the expression does not comply with the principles of clarity and predictability and therefore violates the principle of lawfulness; in cases of war, epidemic, state of emergency, economic crisis, natural disaster, environmental pollution, elections and mass protests, only state institutions’ definitions, explanations and information may come to be considered to be true, reasonable and acceptable.

 

You may recall that during the pandemic, many news reports and sets of data were published on the official number of cases and deaths not reflecting the truth. If this proposed law comes into effect, publishing such news could be subject to investigation. The aim is for news reporting to take official statements as its only valid source. Every news agency, website or social media user will be required to approach matters with the same “sensitivity” as the state broadcaster TRT and the official Anadolu Agency. Neat, isn’t it?

 

In conclusion, while Law No. 5651 already has internet journalism by the throat, the freedom of the press will be rendered meaningless and ineffectual with the new bill.

 

*  Lawyer