A new social media bill being drafted by the government against disinformation, expected to be brought to Parliament in October, will further stifle free speech and lead to more censorship and self-censorship, critics warn

 

MELTEM AKYOL

 

Turkey’s ruling Justice and Development Party (AKP) is drafting yet another social media regulation less than a year after the “social media law” that came into force in October 2020, which obligates the social network providers with more than 1 million daily users to establish a legal and financial presence in the country. This time, the rationale behind the proposed bill is stated as “fight against disinformation.”

 

The issue of “fake news” was first brought forward on 17 July, when AKP Group Deputy Chairman Mahir Ünal stated that they had started working against “disinformation on social media platforms.” It remained on the agenda since then due the widely shared social media posts that slammed the government’s lackluster response to the scorching wildfires that raged in hundreds of spots across the country in July and August, as a result of which the government, in turn, accelerated its work on the upcoming bill ahead of the new legislative year.

 

The bill is expected to be brought to the Parliament in October. Although the government claims the new legislation will be aimed at curbing disinformation on social media, critics voice concern about its ramifications.

 

Expression Interrupted interviewed the main opposition Republican People’s Party’s (CHP) Deputy Chair of Information and Communication Technologies Onursal Adıgüzel, lawyer Gökhan Ahi, an expert on IT law, and İsmail Gökhan Bayram, a columnist for Evrensel newspaper, who mostly focuses on information technologies, to hear their remarks about the repercussions of the new bill, which might be enacted swiftly considering the fact that AKP and its coalition partner, the Nationalist Movement Party (MHP), hold the majority of the seats in the Parliament. All three state that as a result of the new regulation, which will further restrict freedom of expression, censorship and self-censorship will become even more widespread. Expressing concern that the draft law is aimed towards silencing dissent, Adıgüzel warns, “A new witch hunt will begin.”

 

Sanctions against “organized posts”

 

The bill will reportedly introduce sanctions against both social media platforms and their users. Its content is expected to be clarified to a large extent through work carried out by a group consisting of representatives from the ministries of Justice and Transport and Infrastructure and the Presidency’s Directorate of Communications, working under the supervision of AKP Group Deputy Chair Mahir Ünal.

 

After examining the current practices in Germany, the UK, Russia and Australia, the AKP administration is reportedly focusing on the German legislation. Abdülkadir Selvi, a pro-government columnist for Hürriyet newspaper, on the other hand, wrote in his column recently that “Unlike the models in Germany, France or Britain, the Singapore model, which stipulates a 10-year prison sentence for those who fail to remove posts that include hate speech, is also being considered.”

 

According to other recent reports in Turkish media, AKP officials have been dwelling on “imposing sanctions if the sharing of posts that include disinformation is orchestrated, organized and has a specific purpose.” A hotly debated issue, however, is the authority that will be responsible for deciding whether a given post is shared “for the purposes of disinformation.”

 

No concrete information about the draft

 

It has been rumored, since the prospects of the new bill first made the news, that the AKP has been examining the current practices that are in place in Germany, France, Singapore, Russia and Australia. Lawyer Gökhan Ahi, however, states that no one has any concrete idea concerning the upcoming bill since only the government knows about its content at the moment, stressing that we only know what is covered by the media thus far. Ahi also observed that Law No. 5651 on the Regulation of Broadcasts via the Internet and Prevention of Crimes Committed through Such Broadcasts, enacted in 2007, which sets out the legal procedure whereby content on the Internet can be blocked either by an administrative decision or court order, and last year’s amendment to the law in question, which stipulates that social media platforms designate local representatives in Turkey, were immensely inspired by the German legislation.

 

CHP’s Onursal Adıgüzel, who also acts as his party’s spokesperson in the Parliamentary Digital Media Commission, says he made a call for the commission to convene as soon as discussions regarding the upcoming bill were made public. However, Adıgüzel says that although the commission could work while the Parliament is in summer recess, he has yet to receive a response.

 

Noting that the news reports on the issue claim that prison sentences will be introduced in the name of “fighting against disinformation,” Adıgüzel says, “In a country like Turkey, where the culture of democracy is not well established, and especially where judicial independence is non-existent -- and we are also known as a country where the Internet is not free -- the introduction of such a penalty is in fact an attempt to silence dissent; it is an attempt of censorship and self-censorship. This is how we see it.”

 

Adıgüzel thinks that the government is seeking to create a public perception that “a good job will be done” by highlighting the German model on every occasion, and fills in the details about the current practice in Germany, i.e. the Network Enforcement Act, enacted in 2017: “In Germany, there were discussions that lasted for two years. For a long time, experts on the subject worked on a draft. Then, that draft was amended as per the discussions, and the resulting bill was introduced with the participation of all stakeholders. In Turkey, there are only statements made by AKP spokespersons.”

 

“We are not in the same league as Germany”

 

According to Adıgüzel, the government claims that it “makes regulations like the Western countries” by constantly citing the German model, a claim easily refuted by the figures: “When we look at the numbers, we are in the second place, just behind Russia, in terms of content removal requests from Twitter, YouTube and Google services. In terms of Facebook, we rank fourth. Following the amendment to Law No. 5651, the rate of content removal on Facebook reportedly increased by 46 percent. When we look at the content removal requests, we are not in the same league as Germany. We are headed towards the league of authoritarian countries, which include India, China and Russia.”

 

Emphasizing that Germany ranks sixth while Turkey comes at a disappointing 107th among 128 countries in the World Justice Project Rule of Law Index, Adıgüzel comments: “From this perspective, there are no discussions about judicial independence or justice in Germany; its institutions are much more experienced in the culture of democracy. Have you ever heard of a 14-year-old boy arrested in Germany on account of his social media posts? Well, I haven’t. Or, have you ever heard that Merkel’s lawyers were filing criminal complaints against dozens, no, hundreds of people every day for their social media posts? In this case, the government actually needs a perception management. They don’t cite France as an example because some articles [in the relevant law] have been annulled by the constitutional court in France, where the drafting period also took about a year. With these numbers, it is clear this regulation will not lead to a result like the one in Germany.”

 

Who will decide whether a post is “fake news”?

 

For now, it remains unclear which institution will decide, according to what criteria and how, whether a certain post is shared on social media for the purposes of disinformation. Lawyer Gökhan Ahi, an expert in IT law, says that one of the biggest problems will be the identification of “fake news.”

 

Underlining that there is no definition of “fake news” in the current regulations, Ahi states that while lawsuits can be filed for pecuniary or non-pecuniary damages in cases where the press is concerned, there is no authority that can define “fake news” in terms of social media and the Internet, on top of the fact that there is no criterion that defines “fake news” in the Press Law.

 

“This is what we call the ‘ostensible truth’ principle. In respect of the Press Law, a news article does not always have to be completely accurate; it has to be ostensibly true and current to be regarded as a legitimate news report,” says Ahi, adding: “For instance, a reporter can receive a hearsay, evaluate it, and based on it, make a prediction. This stems from the nature of journalism. And then, they can criticize. This does not have to be 100 percent accurate; it has to be ostensibly true. On social media, however, no citizen has such a responsibility, nor do they have such a duty. Besides, it is not possible to evaluate whether it is fake news, accurate news, or ostensible truth. Let’s say, you launch an investigation into a news report by declaring it fake news; following which other investigations will be launched, and the news story turns out to be true; what will happen then?”

 

Stating that attempting to define “fake news” will further restrict freedom of expression, Ahi adds: “[A social media user] can make jokes, use sarcasm; they can even make ‘fictitious’ news -- think of websites like Zaytung [a satirical website that publishes articles on news; arguably a Turkish version of The Onion]. In this case, the responsibility is not Zaytung’s, but it is the responsibility of those who fail to understand the irony. In that case, there will no longer be any humor in this country; there will no longer be any news reports based on hearsay. In fact, this regulation will be a blow to freedom of expression and the press.”

 

It will be an open-ended and broad definition

 

Evrensel columnist Gökhan Bayram also draws attention to the uncertainty surrounding how fake news will be defined by law: “In view of the previous laws, we can probably assume that it will be an open-ended and broad definition that can be interpreted in a myriad of ways. Besides, even if the laws are worded in the most precise manner possible, it is obvious by now how the laws are put to use in highly politicized courts.”

 

Bayram asserts it is obvious that the upcoming bill will not target those who support the government and that it will introduce criteria “open to interpretation” regardless of how it defines the sinister concepts of “fake news” and “disinformation”: “We can safely assume that the law will not be used against pro-government media that disseminate fake news on a regular basis, and that the media critical of the government will be targeted here. The government claims they will introduce criteria such as “if disinformation is orchestrated, organized, and carried out for a specific purpose.” However, all these are definitions that can be interpreted quite loosely in a court. For instance, if a given post or a news report that is critical of the government becomes popular enough in its own right; if it is shared widely enough, and if that post or piece is disturbing enough, there is no obstacle for the courts to interpret it as ‘orchestrated, organized, and carried out for a specific purpose’.”

 

The government’s argument is “incompatible with the reality”

 

According to Adıgüzel, disinformation is, indeed, a highly contentious issue all around the world, but there is a fine line between freedom of expression and disinformation, which should be treated with utmost care and scrutiny.

 

Pointing out the difficulty inherent in defining what is disinformation, Adıgüzel recalls that the government is not open to criticism, and has a habit of declaring those who are not one of them as “terrorists”: “The judges of criminal courts of peace have a partisan attitude, holding any criticism of the government as ‘insults’ and any insults to the opposition as ‘criticism,’ to the extent that they tend to act like the leader of a political party at times.”

 

On the other hand, Adıgüzel states that the claim that the new regulation will “fight against disinformation” fails to comply with the reality, considering the government’s practices of its own propaganda: “They have their own paid trolls. There are politicians and political parties targeted by the presidency’s ‘directorate of propaganda.’ We can see that manipulation is spread by these paid trolls. We witness the spokespeople personally create disinformation. For example, the President claims that in the UK, people getting [Covid-19] vaccines are required to pay 100 pounds. Then it turns out that this is not the case. During the forest fires, now they said we had firefighting planes, now they said we didn’t. Or, they pave the way for the spread of fake news because they are not transparent.”

 

Recalling that approximately 467,000 websites are currently blocked in Turkey, Adıgüzel continues: “At this point, nearly 20 institutions, including the Information and Communication Technologies Authority (BİK), are authorized to remove content. Now, it is said that a directorate of social media will be established and that it will be managed like the Radio and Television Supreme Council [RTÜK]. You see the practices of the RTÜK. They subject the dissenting news outlets to a barrage of fines while covering for the pro-government media. There is an understanding that their supporters should be able to speak out while the rest should stay silent. It is incompatible with the reality to say, ‘I will fight against disinformation,’ without a hint of self-criticism, while this concrete truth is looking at us in the face.”

 

Adıgüzel also draws attention to the timing of the proposed regulation, which might be a prelude to elections: “[Political commentators] have been saying that an early election is inevitable in Turkey. The opposition insists that an early election should be held. Making such regulations as we are approaching the elections brings other questions to mind. If you threaten people with prison sentences in such an environment, it is not fighting against disinformation -- it is censorship and an understanding that wields a big stick, an attempt to silence dissent. Therefore, fighting disinformation is not the real issue here; the real issue is an attempt to intimidate and silence the opposition, especially those who tell the truth on social media and those who document that AKP fails to govern Turkey.”

 

A concerted fight against censorship is vital

 

The lack of concrete information as regards the upcoming bill also fuels the concerns of social media users. For example, will it be an offense to retweet fake news, as well?

 

Lawyer Gökhan Ahi answers our question: “According to the current legislation, it is not an offense to retweet or like a post. The author of the content is responsible for the content, so criminal and legal responsibility lies with the author. I don’t think this will change. I think the government aims to put the blocks on too much social media usage in some way, and to put an obstacle to freedom of expression.”

 

When all is said and done, fake news is a serious problem, so what is the solution? According to Gökhan Bayram, “The government has been building a chain of censorship mechanisms piece by piece. Social media is the last link of that chain. It will depend on the needs of the government and the level of the struggle against it that determine how much these mechanisms can be used.”

 

Bayram stresses that fake news and disinformation are serious problems for the Internet, adding, “However, considering the practices of the government thus far, it is a serious possibility that the law will be used to draw the curtain over criticisms directed at the government, and not to solve or mitigate this problem. Regardless of how this bill will be passed by the Parliament, or how it will be used, we need to expose the use of such mechanisms for censorship, and we need a joint struggle against censorship. A concerted and vigorous fight against censorship is vital to render this massive censorship mechanism harder to use.”

 

The solution: Transparency

 

Gökhan Ahi thinks that transparency of the state and its institutions would prevent fake news: “Many governments around the world do not like to be transparent. Where there is no transparency, where the public institutions and rulers do not provide accurate information, infollution occurs. Some people even take advantage of it. When a fire breaks out somewhere, if you can get accurate information from the source, if you are provided with instant information, would you respect what another ordinary citizen has to say? But that is not what happens; the state becomes silent at times like these. People amplify what other people say. Someone shares an image of another forest fire from three years ago, and those who see it think it happened today, because they cannot get accurate news. The antidote to lies is transparency and informing the public accurately.”