Expression Interrupted

Journalists and academics bear the brunt of the massive crackdown on freedom of expression in Turkey. Scores of them are currently subject to criminal investigations or behind bars. This website is dedicated to tracking the legal process against them.

ANALYSIS | BİK and press freedom: A closer look at advertisement fines against Evrensel

ANALYSIS | BİK and press freedom: A closer look at advertisement fines against Evrensel

The Press Advertising Agency considers its function of distributing public advertisements to newspapers, which should be carried out within the scope of the relevant law, based on whether newspapers criticize the political authority or not

 

Att. DEVRİM AVCI 

 

The Press Advertising Agency (BİK) is a public entity established in 1961 by the “Law No. 195 on the Establishment of the Press Advertising Agency.” As an old law, the Law No. 195 on the Establishment of the Press Advertising Agency was enacted in 1961 and published in the Official Gazette on 9 January 1961. The law is still in force and has been amended many times on different dates. The duties of the Press Advertisement Agency are listed as follows in Article 2 of this law:

 

  1. Being an intermediary for the publication of official announcements and advertisements in periodicals;
  2. Giving loans with a maximum maturity of five years to periodicals, press associations, and unions that participate in the management of the Institution;
  3. Lending money to the members of the press, which will be determined in the regulation, such as those working physically or mentally, with a maximum maturity of two years;
  4. Providing all the needs of the press (such as machinery, paper, ink);
  5. Helping the members of the press, which will be determined in the regulation, such as those in need of assistance who are unable to work, as well as to the families of deceased press members;
  6. Undertaking other social initiatives for those mentioned above;
  7. Carrying out other duties assigned by this law.

 

The main common purpose of these duties specified in the law is to support media organizations and those working in the media industry. However, currently the BİK exhibits a discriminatory attitude especially towards opposition media, which is the main topic of this article.

 

While Article 29 of the Law on the Establishment of the Press Advertising Agency defines public advertisements, Article 34 stipulates the qualification of newspapers that can publish them within the principles to be determined by the General Assembly of the BİK. This is regulated in detail in the “Regulation on Official Announcements and Advertisements and Periodicals Publishing Them.”

 

Article 49 of the Law on the Establishment of the Press Advertising Agency titled “Sanction” sets forth the penal sanction of banning public announcements and advertisements as follows: 

 

Newspapers and magazines, producers, and public administrations and organizations, and other partnerships mentioned in Article 42 that do not comply with this law or the regulation to be made based on this law, or the duties imposed upon the decisions of the General Assembly of the Institution on matters stipulated in this law, or press ethics principles, shall be subjected to the following actions that will be taken without prejudice to other legislative provisions.

 

  1. Based on the decision of the Board of Directors, announcements and advertisements to be given to a newspaper or magazine by the Institution will be interrupted by the General Directorate of the Institution for a period not exceeding two months. In addition, the publication will be barred from the benefits provided by this law. 

 

Referring to this provision, the BİK has decided more than once to ban the public announcements and advertisements of Evrensel newspaper. All cases filed against the decisions, claiming that these decisions violated the newspaper’s freedom of expression and freedom of the press, and seeking the cancellation of these decisions, have so far been rejected. These decisions will be analyzed in this article.

 

10-day ban over Evrensel newspaper’s 13 November 2019 issue

 

On the “media" page of Evrensel newspaper's 13 November 2019 issue, an article titled “Basın İlan Kurumu Kürtçe yayıncılığı bitirdi” (BİK has finished Kurdish-language publishing) (https://www.evrensel.net/haber/390788/basin-ilan-kurumu-kurtce-yayimciligi-bitirdi) was published. This article was about a report titled “Local Media in the Region of Southeastern Anatolia Project (GAP): Problems, Findings, Possibilities,” about problems faced by local media in nine provinces across southeast Turkey as part of a project titled “Capacity Building of Local Media Institutions in the GAP Region – Analyzing of the Needs and Preparing of an Action Plan,” carried out by the Gaziantep University and the GAP Regional Development Department. BİK, ex officio, initiated an investigation about this article. It also demanded the publication of a rebuttal and correction regarding this article, which the newspaper complied.

 

In our opinion, the requested legal purpose was met with the publication of the correction. However, BİK acted of its own accord and decided to suspend public announcements and advertisements for 10 days, and thus interfered with Evrensel newspaper’s freedom of expression by using its legal position.

 

The article cited as the grounds for this sanction is the public disclosure of a university's research report. Since journalists quoted in the report were critical of BİK and the relevant legislation, this sanction was imposed on this article. BİK imposed the sanction pursuant to the General Assembly Decision No. 129 on the Press Ethics Principles that was taken as per Article 49 of the Law No. 195. The justification for the imposition of a ban on running public advertisements is included in Article 1 § 1 (ı) and (l) as follows:

 

ı) Derogatory words that exceed the limits of criticism cannot be used in content about individuals, institutions and society layers; insult, swear words, libel and unfair accusation shall not be allowed.

l) Headlines of articles cannot distort the facts or lead to contradiction.

 

Our appeal against the penalty was rejected by the Istanbul 3rd Civil Court of First Instance. In its decision, the court gave reasons for whether periodicals can be published in Turkish or not, and literally tiptoed around the issue. However, the important point that the court should have examined, that was the main point of the objection, was whether the BİK’s imposing a 10-day ban on running public advertisement due to an article about BİK published in Evrensel newspaper violated the newspaper's freedom of expression and freedom of the press. The court rejected the objection and concluded that the imposition of a penalty for the article in question did not restrict Evrensel’s freedom of expression and freedom of the press.

 

5-day ban over Evrensel newspaper’s 24 February 2020 issue

 

An article titled “Hükümet vatandaşına şehit olmayı vadeder mi?” (Does a government promise martyrdom to its citizens?) by columnist İhsan Çaralan was published in Evrensel newspaper’s 24 February 2020 issue (https://www.evrensel.net/yazi/85800/hukumet-vatandasina-sehit-olmayi-vadeder-mi). The BİK acted on its own accord and requested a defense statement about the article as per Article 1 § 1 (a), (d), (ı), and (l) of the General Assembly Decision on the Press Ethics Principles in connection with Article 49 of the Law No. 195.

 

a) No publication shall be made against the indivisible integrity of the state with its country and nation, the democratic and secular nature of the Republic based on human rights and the rule of law, Atatürk's principles and reforms, and the "Revolution Laws" in Article 174 of the Constitution.

d) Publications that encourage violence and terrorism, and render the fight against drugs and all kinds of organized crime ineffective shall not be allowed.

ı) Derogatory words that exceed the limits of criticism cannot be used in content about individuals, institutions and society layers; insult, swear words, libel and unfair accusation shall not be allowed.

l)   Headlines of articles cannot distort the facts or lead to contradiction.

 

After the submission of the defense statement, BİK rendered a decision regarding the article in question in its meeting on 9 March 2020 and suspended public announcements and advertisements for Evrensel for 5 days as per Article 1 § 1 (ı). 

 

The appeal against this decision was again rejected by the Istanbul 3rd Civil Court of First Instance.

 

Çaralan’s article criticized the words of Recep Tayyip Erdoğan, the President of Turkey and the chairman of the Justice and Development Party (AKP), "Martyrs hill will not remain empty,” uttered during a speech he made in an opening ceremony in Izmir; and the current political situation as well as the government’s Syria and Libya policy. Besides, the President’s statement was reported on in various media outlets and many articles were written about it. However, Evrensel was given a 5-day penalty suspending public advertisements.

 

In doctrine and jurisprudence, it is acknowledged that criticism against politicians and the policies of political parties can be expressed more harshly and acutely. This is also established in many judgments by the Court of Cassation and the Constitutional Court. It is a requirement of the democratic system that articles, news reports and commentary containing political criticism must be tolerated. For example, a Constitutional Court judgment dated 4 April 2016 (no. 2014/12151) held that "because of the public power they use, governments are obliged to tolerate even the harshest criticism.”

 

The Istanbul 3rd Civil Court of First Instance held in its ruling concerning our appeal against the penalty that “the Republic of Turkey was juxtaposed with terrorist organizations in the article, which leads to an insinuation that Turkey has come in line with religious groups that utilize concepts such as jihad, conquest and martyrdom as material for politics. An intermediate-level reader will perceive the article in this way. However, the main subject of the executive statements criticized in the article is that the fight against terror and external enemies will continue. It has been observed that there is no intellectual connection between the article that contains the executive statements and the way this incident is explained and interpreted. Therefore, the publications in the newspaper and website do not comply with the law, and the BİK penalty on the suspension of running public advertisements is expedient.”

 

The court rejected our objection by bringing its own interpretation and this way ruled not to ensure freedom of expression and the freedom of the press, but rather to restrict these rights, arguing that the article would be interpreted in a certain way by the readers.

 

45-day ban over Evrensel newspaper’s 5 May 2020 issue

 

The BİK, ex officio, initiated another investigation against the newspaper over an article titled “Makus kaderden kaçış yok” (no escape from ill fate), published on 5 May 2020 and written by columnist Ragıp Zarakolu (https://www.evrensel.net/yazi/86275/makus-kaderden-kacis-yok). A defense statement was subsequently requested. Following the submission of the defense in writing, the BİK imposed on the newspaper a 45-day ban on running public announcements and advertisements, marking the longest such penalty imposed on any media outlet in Turkey to date.

 

The BİK stated that it had rendered this decision based on Article 1 § 1 (a) and (ı) of the General Assembly Decision on the Press Ethics Principles that was taken according to Article 49 of the Law No 195. 

 

It is clear in our opinion that Zarakolu's article does not violate these principles. The author did not use derogatory words beyond the limits of criticism. There are no insulting statements. The article does not include statements that incite or encourage crime. The article is within the scope of the media's right to report and criticize.

 

In his article, the author offers a brief summary of the political history of Turkey and mentions issues such as political authorities’ coming to power and leaving, being elected and losing the elections, coalitions and other blocs they form stay in power. He does this by presenting an extremely short summary of the history of the Republic. In this context, he emphasizes that power can be lost, as well as gained. As stated above, it is a requirement of the democratic system that articles, news reports and commentary containing political criticism must be tolerated.

 

The appeal against this penalty was also rejected by the Istanbul 3rd Civil Court of First Instance. The court stated that “[…] the article was also published online on the website of the newspaper, with photos of President Recep Tayyip Erdoğan and the late former Prime Minister Adnan Menderes side by side […]” However, such a photograph was not used in the online edition.

 

The court’s ruling read: “It is implied that the current President will be unable to escape a similar fate; in other words, a coup is implied. This comment made by the author, the language used, the interpretation of the events do not reflect the facts, and it is apparent that the publication of such an article would benefit the public or the country. Therefore, it has been decided that writing or publishing of a news article or commentary that is not of public interest cannot be legal, and that the penalty given by the BİK for the suspension of public advertisements is justified, and thus, the present appeal has been rejected.”

 

The court did not view the article in question to be written in light of the author’s personal opinion. However, in its judgments about freedom of expression, the European Court of Human Rights also points out freedom of opinion, which entails individuals’ freedom to form and hold opinions and not to be held responsible or put under pressure due to their opinions. When examining interference with freedom of  expression and freedom of the press, the ECtHR examines value-judgments, namely opinions, separately:

 

In the case of Lingens v. Austria, the ECtHR held that “a careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible of proof. […] As regards value-judgments this requirement is impossible of fulfillment and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (art. 10) of the Convention.”

 

In the case of Thorgeirson v. Iceland (1992), the ECtHR held that journalists can publish rumors and allegations they cannot prove and that “there is no warrant for distinguishing between political discussion and discussion of other matters of public concern,” that the purpose should be taken as the basis for opinions expressed in an offensive language.

 

5-day ban over Evrensel newspaper’s 16 April 2020 issue

 

Separately, the BİK also asked Evrensel to submit a defense statement upon a complaint by the Presidential Communications Director Fahrettin Altun over a news report titled "CHP’li Özel’den Fahrettin Altun tepkisi” (CHP’s Özel reacts to Fahrettin Altun), published on 16 April 2020. After the submission of the defense in writing, BİK imposed on the newspaper a 5-day ban on running public announcements and advertisements as per Article 1 § 1 (c) and (ı) of the General Assembly Decision on the Press Ethics Principles in connection with Article 49 of the Law No. 195. The relevant provisions are as follows:

 

c) No one can be declared guilty unless a final judicial decision proves they are guilty; the presumption of innocence cannot be violated during criminal investigations or in news or comments about events that are the subject of ongoing trials; no statements or comments can be made that will affect the natural and legal course of investigations and judgments, particularly the decisions of judges.

ı) Derogatory words that exceed the limits of criticism cannot be used in content about individuals, institutions and society layers; insult, swear words, libel and unfair accusation shall not be allowed.

 

Our appeal against the penalty was again rejected by the Istanbul 3rd Civil Court of First Instance.

 

The article in question includes the statements of Özgür Özel, a CHP MP and the Parliamentary group deputy leader, regarding Fahrettin Altun's actions about the foundation land next to his residence in Kuzguncuk, and his reactions to the investigation launched against him by the Istanbul Public Prosecutors’ Office because of these statements.

 

The court reasoned that “the compliance of the article with the law was damaged as the newspaper did not investigate its accuracy before publishing the article and due to the fact that the statements of a politician were published without investigating their truth.”

 

However, as stated before, the article in question included public remarks by a lawmaker and the news report’s publication was primarily related to the public's right to information. The article is about a politician, and the possibility of harsher expressions of criticism about politicians, political institutions and state institutions is accepted in doctrine and practice.

 

Moreover, the fact that an article is against a person does not mean that it violates journalism ethics. Of course, journalists do not carry out their work according to whether they are in favor of or against any individual they are reporting on. Moreover, it is among the sine qua non of freedom of the press that persons are criticized in news or articles.

 

Regarding this news article, there is another important issue in terms of restricting the newspaper's freedom of expression and freedom of the press: Fahrettin Altun is the Director of Communications, and the BİK is among institutions affiliated with his Directorate. Under a 2018 decree by President Erdoğan, supervising the BİK was added to the powers of the Directorate of Communications. The Directorate of Communications exercises the said authority at least once a year by auditing all accounts and transactions of BİK. Therefore, in our opinion, Altun’s complaint to an institution that is not independent from him also results in a violation of the right to a fair trial (a fair examination).

 

In conclusion, all these penalties imposed on Evrensel combined also lead to the restriction of the economic freedom of the newspaper. As can be seen in the examples cited above, the BİK has been considering its function of distributing public announcements and advertisements to newspapers, which should be carried out within the scope of its duties specified in the relevant law, based on whether those newspapers criticize the political authority or not.

 

Preventing the expression of opinions, statements and news that are dissenting or remain in the minority as opposed to the government’s official discourse will prevent the free formation of opinions as well as the right to information. Executive opinions and practices that cannot be criticized or discussed become unchangeable in time, leading to political taboos.

 

In a democratic political system, there is no room for sacrosanct opinions and practices. In this respect, the aforementioned public advertising bans on Evrensel violate the newspaper's freedom of expression and freedom of the press.

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