BACKGROUND: The Turkish parliament on February 5 passed broad amendments to law no. 5651 regulating the internet. The amendments, like previous restrictions, were presented as steps to protect children from harmful online content; but the manner, timing, and details of the amendments all suggest otherwise.
The amendments, much like the radical changes to Turkey’s education system in 2012, (See April 2, 2012 Turkey Analyst) were passed rapidly and without genuine debate in society and parliament, and presented in a mixed bill of amendments to a variety of laws ranging from social security to anti-terrorism. This prompted Council of Europe Commissioner for Human Rights Nils Muiznieks to regret “the hasty and opaque manner in which these amendments have been pushed through parliament.”
The amendments, as is the case in many countries, extend requirements of internet service providers to retain user data. More importantly, however, the amendments make it easier for authorities to obtain this data without court order, or for that matter, a clear justification. Simply put, authorities will be able to mine the data for up to two years at their leisure. Moreover, the amendments provide no legal channel to object to such data mining. As a briefing by the OSCE Representative on the Freedom of the Media states, the amendments “will encourage mass interference and will enable the [Telecommunications and Communication] Presidency to request and collect data on the entire population of Internet users from Turkey without any judicial review or process.”
Moreover, the amendments force new onerous responsibilities on Internet Service Providers (ISPs). The law would force ISPs to block access to alternative access means such as proxy websites, or incur substantial fines. Moreover, it exacerbates already heavy sanctions for failing to comply with a blocking order. In a fashion now typical of Turkish legal amendments, the amendment was framed as a relaxation of existing sanctions although it is the opposite. Thus, earlier sanctions under article 8 of law no. 5651 provided for a fine or prison up to two years for failure to comply; the amendments provide only for a fine. But even earlier, prison terms under two years were systematically transformed to fines, paid over a period up to 770 days. The amendments provide for fines to be paid over up to 3,000 days, which could amount to almost $100,000. Such punishments, the OSCE concluded, are clearly disproportionate.
Yet the most egregious part of the amendments are provisions that make it easier for the authorities to issue blocking orders of URLs including individual social media accounts, on the basis of individual petitions claiming rights violations. The amendments allow authorities to bypass the need for a court order, and allow decisions to be implemented within hours. The OSCE concludes that this provision gives the Telecommunications and Communication Presidency “excessively broad discretionary powers to limit expression,” enabling the “issuing of politically motivated blocking orders”. As such, the provision could violate a number of articles of the European Convention of Human Rights (arts 10 and 26-30.) The OSCE concludes that “the new measures will encourage mass interference and will enable the Administration to request and collect data on all Internet users from Turkey without judicial review … leaving unfettered discretion to the administration. Overall, these measures are not compatible with OSCE commitments and international standards on freedom of expression.”
In parallel, in the past month a voice recording appeared on the internet in which Erdoğan, on a trip to Morocco during the height of the Gezi Park protests on June 3, 2013, calls up the Director of the Habertürk television channel, and complains about a text scrolling on the TV screen containing critical remarks by Devlet Bahçeli, the leader of the Nationalist Movement Party (MHP) , urging the immediate removal of the scroll. The Director, Fatih Saraç, immediately complies. The recording is significant not just for its content, but because of the natural and almost careless way in which Erdoğan behaves. The recording gives the clear sense that he places similar phone calls on a regular basis, without thinking too much of it. Answering questions during a state visit to Spain on February 10, Erdoğan confirmed the phone call: “Yes, I called. I just reminded the person that I was being insulted … they did what was necessary … we have to teach them these things.” Commenting on this episode in a TV interview, Haberturk Editor-in-Chief Fatih Altaylı stated openly what has long been known: “Instructions pour down every day. Everybody is afraid [of losing his job].”
IMPLICATIONS: Concerns over media freedom in Turkey are not new. Indeed, the Turkey Analyst in September 2008 reported on the Deniz Feneri controversy, a German court case shedding light on embezzlement in an Islamist charity in Germany benefiting pro-AKP media. When the Doğan media group began reporting on the issue, Erdoğan publicly and relentlessly attacked it, urging his followers to boycott its newspapers and TV channels. In 2009, Doğan media was slammed with a multi-billion dollar fine for alleged tax evasion, which was suspended once the holding divested some of its assets, notably the flagship Milliyet daily. (See 18 January 2010 Turkey Analyst)
Since then, the conditions for the freedom of expression have gradually deteriorated, and Turkey’s position in rankings on media freedom has fallen like a rock. (See 6 February 2012 Turkey Analyst) For several years, Turkey has been the country with the largest number of jailed journalists in the world. In 2011, the Press Law was amended to remove time constraints that forces prosecutors to sue journalists within 2-4 months of the publication of supposedly offending materials. With that provision removed, prosecutors could press charges years later, thus holding a Damocles’ sword over the heads of dissident journalists. As for Turkey’s restrictive internet laws, these have been subject to international criticism for several years. In December 2012, the European Court of Human Rights found that Turkey’s internet law violated the European Convention on Human Rights, because it did not provide for “a strict legal framework regulating the scope of the ban”, or afforded “the guarantee of judicial review to prevent possible abuses”. As of January 2014, the OSCE estimates that 37,000 websites had been blocked by court order.
The pressure on the media got considerably worse with the Gezi Park protests of summer 2013. While estimates differ, Freedom House in a recent report on “Corruption, Media and Power in Turkey” estimates that at least 59 journalists were fired or forced out for reporting critically from May 2013 onward. This includes prominent Turkish journalists such as Hasan Cemal and Nuray Mert of Milliyet, who were both fired after Erdoğan personally denounced them, as well as Yavuz Baydar and Nazlı Ilıcak of Sabah.(See May 8, 2013 Turkey Analyst)
Even against this background, two aspects of the internet law stand out in particular. First, the government no longer just targets the media, but freedom of expression in general. And second, the current measures are not just designed to establish authoritarian rule, but aim to prevent the government’s dirty laundry from coming out into the open.
While there is a consensus among international observers that Erdoğan’s government has been restricting freedom of the media, until recently defenders could point out that it largely refrained from interfering in citizens’ freedom of expression. Indeed, Erdoğan’s reforms from 2002 to 2006 allowed a host of issues that could not be discussed publicly in earlier times to be freely debated. These include the Kurdish, Alevi and Armenian issues, which had been highly regulated by the previous regime. The internet law changes that picture, however, as it allows the government much greater leeway to meddle in the electronic communications and social media activities of individual citizens . As such, Erdoğan is clearly no longer content with controlling the mainstream media. As Turkey becomes increasingly wired and social media networks become ubiquitous, the government has apparently concluded that it is not enough to control the media, but that online freedoms more generally must be restricted.
And the reason behind this urge to repress online freedoms is quite transparent. It is no longer about Erdoğan’s authoritarian inclinations, though they are clearly much more prominent than earlier. Neither is it only about targeting specific enemies, though the measures are obviously aimed in part at the Gülen movement, whose media outlets are relentlessly attacking Erdoğan and publishing incriminating information. It is first and foremost targeted at stopping the release and dissemination of the dirty laundry of the AKP government, and indeed, of Erdoğan’s own family. From what has been released so far – and in spite of the fact that much of the allegations remain to be verified – there is enough material in the corruption allegations that are emerging to cause serious damage to Erdoğan’s domestic credibility, with clear implications for the AKP’s electoral fortunes.
CONCLUSIONS: Erdoğan’s assault on internet freedoms appears to be a desperate move to prevent myriad allegations of corruption from being disseminated to society at large. Erdoğan may already have lost much of his international standing, but in the absence of a strong electoral alternative on the center-right, the pre-dominantly conservative Turkish public may still give him the benefit of the doubt. By cracking down, Erdoğan hope to keep it that way. But much as he did with the reassignment of thousands of police officers and hundreds of prosecutors, Erdoğan is behaving like a guilty man. The government’s protestations to the contrary notwithstanding, the Turkish public is unlikely to be believe that these laws are being amended for the sake of children’s safety.
The amendments to the internet law are not likely to be the last example of Erdoğan’s authoritarianism. Increasingly, it appears that he has realized he can only stay in power by using ever larger degrees of repression. And since Turkish society is unlikely to silently accept that, Erdoğan is putting Turkey on a path to greater domestic instability.
Svante E. Cornell is Editor-in-Chief of the Turkey Analyst and Director of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center.