October 01
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27th August 2020
Data, Tech & IP Human Rights

Op-Ed: “Another Thunderbolt (Yildirim) for Internet Freedom in Turkey” by Sevra Guzel

The internet enables the worldwide public to seek, receive and impart information and ideas and most importantly help them engage in debate and participate in democratic processes (fn 1). Any interference with internet access entails the risk of violation of freedom of expression and information guaranteed by Article 10 of the European Convention on Human Rights (ECHR) as well as the Article 11 of the EU Charter of Fundamental Rights in respect of the rights of providers and users to distribute and access information (fn 2). That is why the nature of the internet makes the essential concept of ‘fair balance’ even more important. Article 52(1) of the Charter states that ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’. Therefore, the European Court of Human Rights (ECtHR) has been underlining the importance of the fair balance in its decisions and shaping fundamental rights according to that in its decisions. The ECtHR has examined online enforcement measures in many cases like Altiparmak v. Turkey (application no. 27023/06), Jankovskis v. Lithuania (application no. 21575/08)), Delfi v Estonia (application no. 64569/09) in addition to Ahmet Yildirim* v Turkey (application no. 3111/10), and tried to find the right balance between conflicting rights and freedoms.

The landmark case of Yildirim v Turkey marks ‘the first time the question of freedom of expression on Web 2.0 based platforms has been put to the ECtHR’. The European Court of Human Rights decided on the 18th of December 2012 that Article 10 ECHR was violated by the blocking injunction ordered by the Denizli Criminal Court of First Instance on June 23 and 24, 2009 under section 8(1)(b) of Law no. 5651. This blocking injunction concerned a Google blog which posted content that insults the memory of Atatürk, an offence under Turkish law. However, the application of this injunction by the Telecommunications and Information Technology Directorate resulted in a ban of all access to all Google Sites, including the applicant’s website which was not the subject of the proceedings.

Judge Albuquerque explained his opinion supplementing the judgment first by setting out the fundamental principles applicable to restrictions on freedom of expression online. Then, he described the minimum criteria that need to be met by legislation to justify measures to ban internet access in order to be compatible with the ECHR. To achieve this compatibility, measures have to comply with the proportionality criteria which provides for a fair balancing of freedom of expression and the competing ‘interests’ pursued, while ensuring that the essence of freedom of expression is respected as well as with the necessity principle, which allows an assessment to be made whether the interference with freedom of expression adequately advances the ‘interests’ pursued and goes no further than is necessary to meet the said ‘social need’.

In Yildirim v Turkey, freedom of expression was recognised as a core value of the internet: ’The Internet has now become one of the principal means by which individuals exercise their right to freedom of expression and information, providing as it does essential tools for participation in activities and discussions concerning political issues and issues of general interest’’(paragraph 54). The ECtHR seems to be in line with this stance in recent decisions.

For example, in Big Brother Watch and others v United Kingdom (application no.s 58170/13, 62322/14 and 24960/15) the European Court of Human Rights found the regime for obtaining communications data from communications service providers of the United Kingdom’s mass surveillance regime to be in violation of Article 8 (right to respect for private life) and Article 10 (freedom of expression) ECHR since its usage was not limited to combatting ‘serious crime’, lack of prior review by a national authority, and lack of protection regarding journalists’ confidential communications (fn 3). The ECtHR reasoned that the regime required more robust safeguards at the filtering and selection stage by applying a set of factors including accessibility and proportionality.

In parallel with these decisions, most recently, in its Engels v Russia (application no 61919/16) decision, the ECtHR found that the Russian law on website blocking by Russian Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor: the Russian federal executive body responsible for censorship in media and telecommunications) had an excessive and arbitrary impact on freedom of expression and had not provided proper safeguards against abuse. In its decision, the ECtHR referred to many international measures like the Declaration on freedom of communication on the internet (fn 4), United Nation reports (fn 5), and the Council of Europe’s recommendations where the importance of freedom of expression and information and right to privacy in blocking or filtering scenarios has been underlined many times. The ECtHR described the significance of the internet for the individuals’ right to freedom of expression and information and highlighted the guarantee of the ECHR for everyone to have the freedom to receive and impart information and ideas arising from Article 10 (Engels v. Russia, paragraph 24). By recalling its previous decisions Ahmet Yildirim v Turkey and Cengiz and others v Turkey, it underlined how blocking measures have important effects on the internet users’ rights as they render large quantities of legitimate information inaccessible, and to avoid false positives erroneously blocking the lawful content, locking measures should be strictly targeted (Engels v. Russia, paragraph 33). Lastly, it discussed the safeguards and concluded that domestic legislation must provide safeguards allowing them to challenge the measures to protect individuals like internet users and internet service platforms from the excessive and arbitrary effects of blocking measures (Engels v. Russia, paragraph 31).  In conclusion, the ECtHR found the Roskomnadzor’s blocking measure to be in violation of Article 10 ECHR due to the lack of safeguards, excessive scope of the measure and lack of clear rules regarding the blocking within the domestic law: the exact same problems considered with Turkey’s new social media legislation.

A draft of the bill of the regulation on social media that will allow stricter monitoring and easier blocking & removal of the content was passed in the Grand National Assembly of Turkey (Turkish parliament) on the 29th of July. The procedure which was introduced by the new regulation will make blocking access to any website by the government easy. Therefore, this will make the new regime open to abuse. Not surprisingly, critics found the new law helpful for authorities which seek to increase censorship and to silence dissent. This new regulation fails to meet the minimum criteria of Yildirim v Turkey; therefore, it fails to meet the essential principles of EU law, especially with regard to proportionality and necessity. In addition to that, even though the procedure to follow for blocking measures is explained clearly in the new regulation, there are no specific provisions governing appeals against measures restricting access to an internet page.

There are many issues with Turkish users’ freedom of expression and information online that have been occurring on for years, and this fact is making the impact of this new law particularly concerning (Yıldırım v. Turkey; Cengiz and Others v Turkey, applications nos. 48226/10 and 14027/11). Currently, there are insufficient safeguards or counter-notice systems placed to achieve proportionality or the required balance of the fundamental rights. This essential issue has been underlined many times by the ECtHR, academics and national courts (fn 6). Right now, more than 400,000 websites are already inaccessible to internet users in Turkey. The current order is described as ‘oppressive and restrictive’ by Professor Yaman Akdeniz who wrote the 2010 Report of the OSCE Representative on Freedom of the Media entitled Turkey and Internet Censorship as well as the 2019 Freedom of Expression Association Report (see this article). This report stated that in Turkey, 408,494 websites were blocked and 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube and 6,200 Facebook contents were banned in 2019. Turkey had the highest number of other legal demands from Twitter in 2019, too. Turkish authorities blocked the online encyclopaedia Wikipedia for three years until the country’s Supreme Court (Anayasa Mahkemesi) ruled that doing so was a violation of the right to freedom of expression (fn 7). It is well accepted that the internet is crucial for individuals to be able to ‘acquire knowledge, engage in debate and participate in democratic processes’ and these actions are also covered by freedom of expression (fn 8).

Unfortunately, this new regulation is not the way to make enforcement stronger on this subject. People who criticise the regulation are not in opposition to the fight against serious crime. These are people who are simply upset to see their fundamental rights taken away from them. The fundamental right of freedom of expression and freedom of speech play a crucial role in a democratic society, and many societies hold freedom of expression and freedom of speech to be a core cultural value. While freedom of expression is at the heart of diversity within the cultural expression, imbalanced regulations undermine the essence of this right and entail a risk to the core of the internet (Republic of Poland v European Parliament and Council of the European Union, C-401/19). The state of the internet in Turkey has been moving far away from the ideal state which is democratic, transparent and has open internet access, and this regulation makes it certain that surveillance and censorship are no longer a risk for internet users in Turkey, but rather the reality.

 

Sevra Guzel is an Attorney at Law, and PhD Candidate at the University of Hertfordshire.

 

*The word ‘Yıldırım’ in the title and the case (also a common surname) means ‘thunderbolt’in Turkish.

(fn 1) Paragraph 1 of Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regards to search engines (Adopted by the Committee of Ministers on 4 April 2012 at the 1139th meeting of the Ministers’ Deputies).

(fn 2) Section III of Recommendation CM/Rec(2012)3.

(fn 3) ‘Big Brother Watch V. The United Kingdom – Global Freedom Of Expression‘ (Global Freedom of Expression, 2018).

(fn 4) Declaration on freedom of communication on the internet (adopted by the Council of Europe’s Committee of Ministers) 28 May 2003.

(fn 5) ‘Report of the United Nations (UN) Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’ (2011) A/HRC/17/27.

(fn 6) Yıldırım v. Turkey; Gurkkaynak G., Yilmaz I. & Durlu D., ‘Exploring New Frontiers in the Interface between Free Speech and Access Bans: The European Court of  Human Rights’ Case of Ahmet Yıldırım v. Turkey’, in European Journal of Law and Technology, Vol 5, No 1, 2014.

(fn 7) Anayasa Mahkemesi, Wikimedia Foundation Inc. ve Diğerleri (Wikimedia Foundation Inc and Others), application no. 2017/22355, 26 December 2019

(fn 8) Yıldırım v. Turkey , para 26; Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines (Adopted by the Committee of Ministers on 4 April 2012 at the 1139th meeting of the Ministers’ Deputies).

 

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