Internet Freedom in Turkey and Law No. 5651

The Internet—a network enabling the rapid and low-cost dissemination of data—is an abbreviation of the term "Interconnected Networks." Making the Internet available to the general public and expanding its reach brings the concept of "Internet freedom" to the forefront. Online publishing entails the free expression and dissemination of news, thoughts, and opinions; as it has become easier to access and publish such content on a global scale, the scope of this freedom has expanded proportionally. In this regard, any regulations concerning Internet applications are likely to be effective only if implemented through international cooperation.

A crucial element of Internet freedom is the absence of interference with individuals' freedom to access the Internet. Since any individual with a webpage or email address can publish content online, prior censorship is virtually impossible; however, it remains possible to punish offenders after a crime has been committed. Blocking access to a website due to an individual's ideas or opinions deemed criminal constitutes "censorship"; furthermore, blocking access to an entire site—simply because of a specific news item, article, or image—is undoubtedly disproportionate.

It is incorrect to view the Internet solely as a medium for criminal activity or to regard its users as potential criminals. Although Law No. 5651 was enacted in 2007 with the aim of combating crime, it has effectively evolved into a measure that targets the Internet and its users. Naturally, child pornography, pornography, violence, racist rhetoric, and incitement to commit crimes are unacceptable and must be prevented. Like any freedom, internet freedom is not absolute. It is evident that Law No. 5651 has gone too far and that the regulation has effectively turned into internet censorship.

A key factor driving the growth and appeal of the internet is its support for anonymity. Internet users can disclose personal issues or private matters, submit tips, or conduct commercial transactions without the risk of being identified, facing a backlash, or suffering embarrassment.

A pertinent example involves the file prepared by the TMSF (Savings Deposit Insurance Fund) for the "Second Göltaş Operation," which incorporated video footage posted on YouTube titled "How Göltaş Was Robbed."

Uploaded to the site under the username "Göltaş2010"—making it anonymous as the uploader's identity was unknown—the video consisted of confessions from individuals discussing Göltaş, alongside documents they held. The TMSF became aware of the YouTube footage following a tip-off. After reviewing the videos, the TMSF determined that the statements and documents featured in the footage constituted evidence that would strengthen the case for the Second Göltaş Operation and subsequently included them in the file. The video footage published on YouTube under the title "How Göltaş Was Robbed" was submitted to the court as evidence.

It is also argued that anonymity negatively impacts accountability on the internet and represents an antisocial attitude or behavior. Law No. 5651 effectively eliminates anonymity on the internet; primarily, it imposes an obligation to provide information. Specifically:

An obligation is imposed on content, hosting, and access providers to make their identifying information available online—in an up-to-date manner—so that users can access it. Consequently, these providers are required to disclose their identities. The penalty for non-compliance ranges from 2,000.00 TL to 10,000.00 TL. In reality, given that law enforcement agencies can quite easily trace users' IP addresses, the necessity of this obligation is open to debate. The imposition of a direct monetary fine, without first issuing a warning, is also a subject of contention. The authority responsible for imposing these penalties is the Presidency of the Telecommunications Authority.

Decisions to Block Access to Websites The practice of filtering websites became a widely discussed topic in 2007 with the enactment of Law No. 5651.

The need to monitor the illegal use of the internet gave rise to a requirement to track and regulate—under a common definition—virtual crimes that can easily be committed across international platforms. In this context, the Council of Europe Convention on Cybercrime was opened for signature in Budapest at the end of 2001 and was signed by 30 countries. Turkey has not yet signed it. (Check again: February 2008.)

Regulations: 1. Regulation on the Procedures and Principles Regarding the Regulation of Publications Made in the Internet Environment; 2. Regulation on Internet Mass Access Providers; 3. Regulation on the Procedures and Principles Regarding the Issuance of Activity Certificates to Access Providers and Hosting Providers by the Telecommunications Authority.

Blocking access to websites—whether due to an individual's ideas and opinions containing criminal elements, or because of a specific news item, article, or image—effectively eliminates the exercise of the right to access the site in its entirety.

At this point, let us examine the issue by looking at the "YouTube" experience. As is known, access to the video-sharing site "YouTube" was blocked due to the uploading of a video that violated the Turkish Penal Code (TCK). (The reason YouTube is currently inaccessible stems from copyright issues regarding music videos hosted on the site; this aspect will be critiqued later.)

The initial decision to block YouTube sparked widespread protest against censorship in the realm of information technology. This decision—which is excessive, disproportionate, and incompatible with the principle of necessity—along with the manner in which numerous subsequent disputes serving as precedents were resolved, is a subject of debate. Indeed, blocking access due to unlawful content constitutes a violation of the very essence of the right.

Pursuant to Article 8 of Law No. 5651,

A decision to block access shall be issued regarding publications on the Internet where there are sufficient grounds for suspicion that the content constitutes an offense under the Turkish Penal Code (TCK)—specifically:

Incitement to suicide

Sexual abuse of children

Facilitating the use of drugs and stimulants

Supply of substances dangerous to health

Obscenity

Prostitution

Providing a place and facilities for gambling

—or constitutes an offense under the Law on Crimes Committed Against Atatürk.

The decision to block access is issued by a judge during the investigation stage (or by a public prosecutor in cases where delay would be detrimental) and by the court during the prosecution stage. Decisions issued by a public prosecutor must be submitted to a judge for approval within 24 hours. The judge must then render a decision within a maximum of 24 hours. A copy of the decision, complying with the formal requirements set forth in Article 15 of the Regulation, shall be sent to TİB, and the Presidency shall immediately notify access providers electronically of the details of the decision for implementation. Furthermore, the decision shall specify whether the blocking method to be employed is based on IP addresses or domain names. A decision to block access may be issued either for a specific subdomain or a specific address of a site containing unlawful content (partial blocking), or for the entire domain name, thereby blocking access to the site in its entirety (total blocking).

As stipulated by the regulation, TİB is capable of blocking access on both an IP and a domain name basis; consequently, it has the authority to block access completely to a domain name such as "www.alanadi.com," as well as to block access to a specific subdomain (e.g., "abc.alanadi.com") or a specific webpage (e.g., "www.alanadi.com/abc").

The Presidency of Telecommunication (TİB) issues decisions *ex officio* to block access to publications that give rise to sufficient suspicion regarding the commission of crimes involving—

– child sexual abuse, or

– obscenity,

regardless of whether the content provider or hosting provider is located abroad or within the country. Directly granting the Telecommunications Authority—an administrative body—the power to block access to online content amounts to censorship. Undoubtedly, it would have been more appropriate to mandate that such a decision be reported to a competent judge for approval within a reasonable timeframe. Blocking access in the online environment is a measure of last resort. Preventing child abuse and protecting the health of children and young people should be achieved by preventing children from accessing harmful websites. Furthermore, blocking access to sites with millions of users and vast amounts of lawful content—solely due to a single piece of illegal content that could otherwise be removed—effectively eliminates the exercise of freedom.

Pursuant to Article 7 of Law No. 5651, "all providers of collective internet access"—regardless of whether they operate for commercial purposes—are required to take measures to prevent access to content that constitutes a crime.

Indeed, under this article, a company official would be held liable for access activities carried out via computers used by employees within that company.

This provision, which mandates preventive oversight, is akin to swatting mosquitoes rather than draining the swamp when it comes to preventing child pornography. By restricting freedom of thought and expression without a judicial order, the law clearly violates fundamental human rights and the Constitution.

The failure to list these offenses in a specific catalog creates a situation that leads to intractable disputes in practice. Regarding offenses involving the display of symbols of sovereignty or authority, the disparagement of military and law enforcement agencies, and commentary constituting propaganda for terrorist organizations...

...Law No. 98 on the Basic Provisions of Elections and Voter Registries, the Laws of the Revolution...

...and the Turkish Flag Law remain unaddressed in this context.

In this regard, while Article 162 of the Turkish Penal Code (TCK) could theoretically continue to be applied, the Telecommunications Communication Presidency (TIB) has raised objections.

When implementing access blocking measures, care must be taken to block only the specific sub-pages or interfaces containing the illicit or harmful content, rather than blocking the entire website.

LIFTING OF THE DECISION TO BLOCK ACCESS

Decisions to block access issued by a Public Prosecutor, a Judge, or a Court as a protective measure may be challenged by TİB (Telecommunications Communication Presidency) and by "interested parties" in accordance with the provisions of the Code of Criminal Procedure (CMK). The concept of an "interested party" should be understood as a person whose interests are affected by the access-blocking decision. In this regard, even users have the right to object regarding a website subject to an access-blocking decision. Objections against access-blocking decisions may be filed within 7 days from the date the decision becomes known.

Pursuant to the CMK, if an access-blocking decision is issued during the investigation stage by a Public Prosecutor, the objection may be filed with the Judge of the Criminal Court of Peace. In cases where the decision is issued by a Judge of the Criminal Court of Peace or a Court, the objection may be filed with the judge or court that issued the decision.

If the judge or court finds the objection justified, they will rectify the decision; if they insist on the decision, they will forward the matter to the authority competent to review the objection. The authorities competent to review objections are specified in Article 286 of the CMK. Accordingly, for decisions issued by a Criminal Court of Peace, the authority competent to review the objection is the Court of First Instance (Asliye Ceza Mahkemesi) within the same judicial district.

If the access-blocking decision is issued by a Court of First Instance, the authority competent to review the decision is the Heavy Penal Court (Ağır Ceza Mahkemesi) within the same judicial district. If the decision is issued by a Heavy Penal Court, the authority competent to review the decision is the nearest Heavy Penal Court. The Law does not provide a mechanism to appeal access-blocking decisions issued by TİB. Undoubtedly, regarding TİB decisions submitted for judicial approval, an objection may be lodged with the judicial authority that issued the approval. However, neither the Law nor the Regulation contains a specific provision regarding access-blocking decisions that TİB may issue without submitting them for judicial approval. Therefore, individuals who believe that decisions taken by TİB are unlawful may file a lawsuit in an administrative court to seek the annulment of the administrative act in question and may also claim compensation through a full remedy action for any damages suffered.

Pursuant to Article 141 of the Code of Criminal Procedure (CMK), those who suffer damages due to protective measures may claim compensation from the State for the pecuniary and non-pecuniary damages they have incurred. Given that an access-blocking decision—if issued by judicial authorities—constitutes a protective measure, can compensation be claimed for access-blocking decisions issued outside the conditions specified in the law? For instance, if a Public Prosecutor issues a decision regarding acquittal during the investigation stage, how will the damages suffered by the content provider and other aggrieved parties due to the blocking of access be compensated? Article 141 outlines the circumstances under which compensation may be claimed for protective measures, and the blocking of access is not among these circumstances. In this respect, compensation cannot be claimed under the CMK for access-blocking decisions that constitute protective measures. In this regard, one of the most significant shortcomings of the Law is that parties affected by unjust or unlawful access-blocking orders will be compelled to file full remedy actions in administrative courts to seek compensation for their damages in accordance with general legal provisions.