Government pushes for bill introducing obligations for social network providers such as appointing representatives in Turkey and sharing user data with Turkish authorities
Following President Recep Tayyip Erdoğan’s public statement on 1 July 2020 that social media platforms “should be completely shut down, brought under control,” a bill drafted by the ruling Justice and Development Party (AKP) with support from its ally the Nationalist Movement Party (MHP) and proposing major restrictions on social media was introduced in Parliament on 21 July.
The bill, when made into law, is expected to bring further restrictions on online freedom of expression and media freedom in Turkey in the form of access bans, criminal investigations and more censorship.
Earlier this year, the government attempted to introduce new legislation about social media as part of an omnibus bill that mainly included measures against the Covid-19 outbreak. However, articles of the omnibus bill regarding the social media restrictions were withdrawn at the last minute. The controversial bill is now expected to be enacted before the Parliament goes on summer recess by the end of July. The AKP will reportedly seek consensus in the Parliament for the social media bill.
Reacting to “insults” on social media targeting his daughter Esra Albayrak, son-in-law Berat Albayrak and their newborn baby, Erdoğan had said in a televised appearance on 1 July: “Do you now understand why we are against YouTube, Twitter, Netflix and the like? It is because we want to eliminate this kind of immorality. […] We will swiftly bring this [legislation] before the Parliament and we want our Parliament to completely shut down, bring these [platforms] under control.” He added: “We are working on a comprehensive legislation in this regard. Once it is completed, we will put in place all methods [of regulating social media] including access restrictions and legal and financial sanctions. Turkey is not a banana republic.”
The proposed regulation imposes an obligation on social media providers to appoint legal and financial representatives in Turkey. Companies that do not meet the requirements will face access restrictions as well as legal and financial sanctions.
“Opposition not notified of details”
Opposition lawmakers say that despite the bill having been in the works for several months and the forthcoming summer recess, they have yet to receive the proposal for review and that they only found out about the details of the bill through the press. Opposition MPs argue that the bill is aimed at both obtaining tax revenues from multinational social network providers and at the same time getting easier access to user data concerning persons who are likely to face prosecution for their social media posts. The government, on the other hand, has been insisting that the bill is aimed at making it legally binding for social network providers to open offices in Turkey, not at imposing restrictions on social media.
So what does having an office in Turkey entail for social network providers? Yaman Akdeniz, a professor of law and cyber-rights defender, told P24 that if social network providers agree to open offices in Turkey, they will have to cooperate with the judiciary.
Akdeniz explained: “They will be obliged to both provide user data [to the government] and follow all the local rules and regulations. Otherwise they will face sanctions and/or legal proceedings. If, on the other hand, they do not agree with these conditions, they will risk being shut down [in Turkey] completely.”
“Both options are problematic in terms of the future of Internet freedom in Turkey,” he added.
Asserting that the enactment of the social media bill would pave the way for more investigations, access bans and censorship targeting social media in Turkey, Akdeniz said: “Currently, social network providers only restrict access to content from Turkey that violates their internal policies and regulations. For instance, Twitter has been refusing to implement orders for blocking access from Turkey to journalist Can Dündar and fashion designer Barbaros Şansal’s accounts.”
“MHP is pressing for the legislation”
The proposed legislation will enable authorities to reduce the bandwidth of social media providers that fail to appoint legal representatives in Turkey by up to 95 percent, effectively making them inaccesible. Network providers will be obliged to respond to requests by individuals concerning content from Turkey within 48hours. Companies will also be obliged to store user data in Turkey. They will be held liable if they fail to remove content or ban access to content within 24 hours in case there is a court decision establishing "unlawfulness" of that content.
The proposal containing similar measures was withdrawn in April. Shortly after that, the MHP introduced a bill that proposed that all social media users enter their national ID number while logging in to social media, along with other restrictions. This, however, reportedly failed to get the ruling AKP's support.
The MHP is strongly supporting greater control of the government on social media: MHP Chairman Devlet Bahçeli and the party’s top level officials have announced that they will be suspending their social media accounts until the Parliament passes the new social media legislation.
Pointing out that the government first signaled a social media bill in March, when criticism was mounting on social media that the government had failed to implement adequate measures against the Covid-19 outbreak, Akdeniz said: “We know from statements issued by the Interior Ministry [during the pandemic] that numerous social media accounts were monitored, criminal proceedings were launched against many citizens, and many detention orders were issued.” The Ministry announced on 23 March that “judicial action was taken against the owners of 316 social media accounts who caused panic among the public by spreading fake audio and video files to manipulate opinion and for provocation.”
“Comparison with Germany is wrong”
In the meantime, Turkish authorities are arguing that the new bill is modeled on social media legislation currently in effect in Germany. The German legislation regulating social media came into force in 2017 and the regulation related to alleged criminal content on platforms such as Facebook, Twitter, Reddit and YouTube was amended last year. The law makes it obligatory that content that counts as insult, slander, incitement, threat, that encourages the people to commit crime or contains images of violence be removed or restricted within 24 hours and requires social media companies to keep regular reports on complaints. Fines ranging from 5 euros to 50 million euros can be imposed if the platforms do not have an effective complaint system or the system does not function properly.
Opposition lawmakers are of the opinion that due to the differences between the legal systems of Turkey and Germany, such a comparison is incorrect. The opposition asserts that this argument can be refuted by merely looking at how many proceedings are launched in Turkey on the charge of “insulting the president.”
Akdeniz thinks that based on Germany’s democratic structure and its functioning judicial system, social media providers have no problem with setting up offices in Germany. According to Akdeniz, this situation is best exemplified in Turkey’s 2017 access ban on Wikipedia, which was lifted some 2.5 years later, when the Constitutional Court eventually revoked the ban.
Social media posts cited as evidence in indictments
AKP, on the other hand, has been arguing that the legislation is being prepared in order for the remedies to be applied to social networks for crimes such as “sexual abuse, obscenity, gambling, fraud, abetment, terrorism propaganda and insult.” However, currently many laws such as the Turkish Penal Code (TCK), the Anti-Terror Law (TMK), and the Internet Law (Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by means of Such Publications) already criminalize such acts. Social media posts are readily cited as evidence in indictments against journalists, intellectuals and politicians and evidence in trials on “insulting the president” charge also usually consist of social media posts.
However, opposition parties have been complaining that although their lawmakers who are regularly insulted on social media file criminal complaints, those investigations often result in decisions of non-prosecution.
Those who allegedly insulted Erdoğan’s family caught in 24 hours
Erdoğan’s remarks about his government’s plans on bringing social media under control came one day after his daughter Esra Albayrak, son-in-law Berat Albayrak and their newborn baby were targeted by insulting posts on social media. The same day, Interior Minister Süleyman Soylu announced that those who allegedly insulted the Albayraks on social media have been detained.
While those who insulted Erdoğan’s family were arrested in about 24 hours, complaints about a Twitter user named Kadir G., who targeted journalist Nevşin Mengü, actress Berna Laçin, lawyer Feyza Altun and main opposition CHP's Istanbul provincial head Canan Kaftancıoğlu - all known for their social media posts critical of the government actions - in a post two months before the Albayrak incident, failed to yield any result.
Under the Twitter handle “elmeru_baba”, Kadir G. posted: “Everybody is writing that if there is a coup attempt, they’ll have Nevşin, or Berna, or Feyza Altun. Well, I won’t have Canan, I tell you, don't even think about it.” Berna Laçin subsequently filed a criminal complaint about this post with the Anadolu Chief Public Prosecutors’ Office. However, the prosecution completed its preliminary investigation and rendered a decision of non-prosecution about Kadir G. earlier this month.
According to Erol Önderoğlu, the Turkey representative of Reporters Without Borders (RSF), “While the judiciary clearly refrains from taking decisive action in cases where journalists and rights defenders are openly insulted on social media, are targeted by trolls, and at a time when hatred towards the society is being fueled, it is quite suspicious that this regulation is brought to the agenda.”
“Online journalism targeted as well”
Legislation regulating social media will also have important consequences for freedom of the press in Turkey. Stating that 85 percent of national media is already controlled by the government and that critical media outlets are under heavy financial and judicial pressure, Önderoğlu asserted that through the soon-to-be proposed legislation, the government also intends to exert control over international online journalism.
Önderoğlu said: “For RSF, it is not possible to accept journalism content on social media platforms such as YouTube, Twitter and Facebook that are safeguarded by international standards of freedom of expression to be subjected to restriction based on ‘local values, culture and understanding specific to Turkey.’ We believe that journalism, which exercises its right to freely report and criticize on social media, will suffocate in the hands of a politicized judiciary. At a time when Criminal Judgeships of Peace regularly censor news material of public interest without even providing the grounds for their rulings, it is easy to foresee the same fate awaits social media platforms if the social media bill is enacted.”
Reminding that journalist Mehmet Y. Yılmaz, who is now a columnist for online newspaper T24, was recently acquitted in a trial over his articles in which he inquired about the growth in former Prime Minister Binali Yıldırım’s wealth, Önderoğlu said that despite the acquittal verdict, access to Yıldırım’s relevant articles has been banned since 14 June 2019 under a decision of Istanbul’s Anadolu 4th Criminal Judgeship of Peace. “How do we explain the disrespect shown to the opinions of Mehmet Y. Yılmaz -- a journalist with a 45-year career? Not only is the judiciary not independent in Turkey, but also there is no democratic judicial supervision safeguarding the public’s right to information,” Önderoğlu added.
Top country blocking social media accounts
According to data compiled by the Freedom of Expression Association (İFÖD), access to some 130,000 URLs, 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube videos and 6,200 pieces of content on Facebook was blocked in Turkey by the end of 2019. İFOD also reported that a total of 1,484 Twitter accounts were blocked by Turkish Criminal Judgeships of Peace in 2019, making Turkey the top country who made the most withholding requests to Twitter.
According to the Digital 2020: Turkey report, prepared by We Are Social and HootSuite and published in February, 64 percent of Turkey’s population actively uses social media. According to January 2020 figures, YouTube is the most popular social media platform among the approximately 54 million active social media users in Turkey with a utilization rate of 90 percent, followed by Instagram, Facebook and Twitter.