Internet rights that went wrong in Turkey - AUGUST 2014 by Güneş Tavmen - apcict
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SP
GI IAL
E
SW R
C
a t E PO
ch R
Internet rights that went
T
wrong in Turkey
AUGUST 2014
by Güneş Tavmen
Association for Progressive Communications (APC)
and Humanist Institute for Cooperation with Developing Countries (Hivos)
Abstract
T his report presents an up-to-date assessment
of internet rights in Turkey, and has been
prepared for the Internet Governance Forum (IGF)
to freedom of expression online. The assessment
is based on the La Rue framework1 and focuses
on internet regulation, internet access, blocking,
2014 which is being hosted by Turkey in Istanbul on surveillance, liability of internet intermediaries,
2–5 September 2014. The IGF is a space that strives criminalisation of legitimate expression, and
for a democratic and inclusive internet and this cyber-attacks. The report concludes with
report assesses the Turkish government’s respect recommendations for actions to promote and
for international human rights standards in relation protect an open and free internet in Turkey.
1 The framework was developed by the Association for Progres-
sive Communications and is based on the work of the former
United Nations Special Rapporteur on Freedom of Opinion and
Expression Frank La Rue. It is available online at: http://www.
apc.org/en/system/files/APC_FLRFramework_20140620.pdf
2 / Internet rights that went wrong in TurkeyTable of Contents
Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. General Legal Framework Regulating Internet Content. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. Access to Content, Blocking and Filtering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a. Google/YouTube. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
b. Twitter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
c. Other Blocked Websites. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
d. Filtering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. Intermediary Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
IV. Protection of the Right to Privacy and Data Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
V. Legitimate Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
VI. Cyber-attacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
VII. Conclusions and Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Background
T urkey is a melting pot of different cultures
due to its geographical position and its
history dating back to the Ottoman Empire.
ranked Turkey 58th out of 81 countries according to
indicators based on universal access, freedom and
openness, and empowerment.4
Situated at the junction of Asia and Europe, to According to a Freedom House report by Kelly,
the north of the Arabian Peninsula, it surely Cook, & Truong, until 2011 “the government had a
contains the characteristics of all these different hands-off approach to internet regulation but has
geographies. Therefore, in order to understand since taken considerable legal steps to limit access
the social and political dynamics in Turkey to certain information, including some political
thoroughly, there is a need to understand a content.”5 In contrast to this early approach, by
complex set of variables. 2011, Turkey had become the first country in the
Following the declaration of republic in 1923, OSCE to introduce a government controlled and
the country has been struggling constantly with maintained content filtering system.6 And today,
the democratisation process. Being a secular Turkey sits atop the Google Transparency Reports
republic with a growing economy, Turkey has set with the by far highest number of requests for
an exemplary model for the other countries in its content removal from governments.7
region. Moreover, as a candidate for the European The drastic change in the approach towards
Union (EU) membership, Turkey has come a internet regulation and governance can be
long way in adjusting its legal system to the EU examined in a broader political context related
standards. In the last decade, Turkey has improved to the traditional problems of restrictions in the
its legal infrastructure in many ways, especially freedom of expression and media in the country.
in terms of enhancing minority rights (mainly for Another related factor is the highly accelerated
the Kurdish population). However, there are still penetration of the internet in the early 2000s.
many practical and legislative complications for Internet penetration among the population was
sustaining human rights in the country. Press 5,2% in 20018 and leaped to approximately 50%
freedom, the right to information, freedom of by 2013.9 There are now an estimated 36 million
expression, and the right to privacy remain of internet users in Turkey, and as a result of the
contentious. combination of high numbers of internet users and
Turkey is ranked 154th out of 180 countries in
the Reporters Without Borders’ Report of World
Freedom of Press Index 2014.2 According to this
report, there are around 60 journalists that were
in detention by the end of 2013, which gave Turkey 4 World Wide Web Foundation http://thewebindex.org/wp-con-
the notorious reputation of “world’s biggest tent/uploads/2013/11/Web-Index-Annual-Report-2013-FINAL.
pdf
prison for media personnel.”3 This illiberal attitude
5 Sanja Kelly, Sarah Cook & Mai Truong, eds. (New York: Free-
towards the press is in line with the government’s dom House, 2012), 525 http://www.freedomhouse.org/sites/
intense censorship and surveillance on the default/files/FOTN%202012%20FINAL.pdf
internet. Consequently, the Web Index Report 6 Yaman Akdeniz (Astana: OSCE 2010), 28 http://www.osce.org/
prepared by the World Wide Web Foundation fom/80723?download=true
7 The constantly updated Google Transparency Report is available
online at: http://www.google.com/transparencyreport/remov-
als/government/countries/
8 Mestçi, Aytaç (Turkey: Beykent Üniversitesi, 2007) http://
ab.org.tr/ab08/bildiri/17.pdf
2 Reporters Without Borders (Paris: Reporters Without Borders, 9 Türkiye İstatistik Kurumu “Hanehalkı Bilişim Teknolojileri Kul-
2014) https://rsf.org/index2014/data/index2014_en.pdf lanım Araştırması, 2013” (TUIK Haber Bülteni, 22 August 2013)
3 Reporters Without Borders http://www.tuik.gov.tr/PreHaberBultenleri.do?id=13569
4 / Internet rights that went wrong in Turkeythe government’s penchant for controlling media, Freedom of Opinion and Expression Frank La Rue,
regulations on the internet got tighter together who first assessed freedom of expression in his
with the increasingly authoritarian attitude of the annual report to the United Nations Human Rights
government. Council in 2011.10 The questions in the framework
This report assesses freedom of expression are intended to provide guidance in monitoring and
and the internet in Turkey in light of the work of reporting internet-related human rights violations,
former UN Special Rapporteur on the Right to specifically those related to freedom of expression.
10 UN Human Rights Council (Geneva: OHCHR, 16 May 2011)
http://www2.ohchr.org/english/bodies/hrcouncil/docs/17ses-
sion/a.hrc.17.27_en.pdf
5 / Internet rights that went wrong in TurkeyI. General Legal Framework Regulating Internet Content
A ccording to the La Rue Framework, the first
indicator of compliance with international
human rights standards is that national law or the
are estimated to have been censored for various
reasons based on these laws.13 According to
Engelli Web (Impaired Web), a civil initiative
constitution protects freedom of expression online. working on specifying the number and the list of
The Turkish Constitution does contain protection restricted websites, more than 50,000 websites
for freedom of expression in general terms by have been blocked in Turkey.14 Of all these, only
Article 25 and 26 which is in line with the European 4.1% have been blocked via court decision,
Convention of Human Rights. However, this general whereas 91.4% have been blocked directly by The
protection has been severely curtailed by new Telecommunication Directorate.
internet-specific legislation that affects online When the Law 5651 came into effect in 2007,
freedom of expression. it was met with much discontent and surprise, as
In Turkey, there are two main laws that restrict it was prepared without any proper consultation
the content of web pages on the internet. Law 5651 with experts. The manner in which the bill was
on the “Regulation of Publications on the Internet passed in the parliament (over one night) did not
and Suppression of Crimes Committed by means of allow time for any public deliberation. The bill
Such Publication” is concerned with the contents was already very controversial because of the
of the websites like child pornography or drug and way it was prepared and the fears that it would
gun sales and also more subjective issues like be open to subjective interpretation due to vague
insulting Mustafa Kemal Ataturk or the propaganda content. Since the bill was passed, , the situation
of terrorist groups.11 Law 5846, the intellectual deteriorated. The legal ground to maintain
property rights (IPR) law, regulates IPR as its name autonomy on the internet and freedom of access to
suggests.12 Although it is not specific to online information has been continuously weakened by
content, the internet is heavily affected by this new regulations.
law. Whilst the former law regulates the content In 2013, Turkey went through unprecedented
in terms of catalogue crimes (considered as illegal events in its history. The Gezi uprising, a series
under different laws), the latter is related to of protests named after the park that sparked
commerce as it aims to protect the profit generated the initial protest, spread throughout the whole
through intellectual property. It is mainly The country after peaceful civil resistance of some
Telecommunication Directorate (TIB) and The hundred young people trying to save the last
Information and Communication Technologies green area in Taksim was met with brutal police
Authority (BTK) that are in charge of following up attacks. The attacks ignited a weeks-long civil
on compliance with these laws, however, public protest against the Prime Minister Tayyip Erdogan’s
prosecutors and individuals may also file cases autocratic policies. When the mass media turned a
based on these laws. blind eye to the protests of hundreds of thousands
Thousands of websites have been blocked in of people, social media, especially Twitter, became
the last seven years based on the application of the main means of communication.15 Not long
these laws. Although there is no definite number after that, Erdogan called Twitter “a menace
released by the state authorities, according to
the EU’s latest report on Turkey’s Progress in 13 European Commission (Brussels: European Commission,
Access to the European Union, 32,000 websites October 2013) http://www.abgs.gov.tr/files/AB_Iliskileri/
Tur_En_Realitons/Progress/tr_rapport_2013_en.pdf
11 The full text of the law is available online at: http://www.resmi- 14 The constantly updated Engelli Web tracker is available online
gazete.gov.tr/eskiler/2007/05/20070523-1.htm at: http://engelliweb.com/istatistikler/
12 Law 5846 dates back to 1951 but has been amended several 15 Olga Khazan “These Charts Show How Crucial Twitter Is for the
times after 2000, with the latest update in 2012. The full text of Turkey Protesters” 12 June 2013 http://www.theatlantic.com/
the law is available online at: www.mevzuat.gov.tr/Mevzuat- international/archive/2013/06/these-charts-show-how-cru-
Metin/1.3.5846.doc cial-twitter-is-for-the-turkey-protesters/276798/
6 / Internet rights that went wrong in Turkeyto the society” for it allowed swift information • Anyone with a claim that a website intrudes
dissemination during Gezi protests.16 upon their personal life can demand a website’s
A government corruption scandal broke ban through a petition submitted to TIB, again
out on in December 2013 after hacked phone without a court order.
conversations were leaked on Soundcloud and • Websites can be shut down by either blocking
YouTube, and disseminated on Twitter. The banning IP addresses or specific URLs. This means that
of Twitter and YouTube as a consequence of these only the specific contentious page can be shut
events will be explained Section II of this report, down instead of the entire website. However
but these events also resulted in the preparation of to be effective, this means that a Deep Packet
legislation to make amendments to the Law 5651 Inspection of the source of the content is also
for heightened censorship and surveillance. required.
In February 2014, a month before the mayoral
elections in Turkey, Law 5651 was again extended
These are some of the amendments made to the
through a bundle of legislation that contained
content of 5651 in terms of simplifying the process
120 more articles, regulating laws such as the
of blocking the websites. However this new
Social Security Law, General Health Insurance
legislation also added a heightened surveillance
Law and Anti-Terrorism Law. Hidden within this
mechanism for the internet. According to new
bundle, were further changes. Public consultation
law, both web hosting companies and service
had been bypassed during the preparation of the
providers are obliged to keep records of all internet
legislation, and as a result of new regulations,
activities of all users for two years. In order to
TIBwas given full authority to remove web pages
control and enforce this, all the service providers
without having to wait for a court order. Defying
are also obliged to be members of a union to be
demonstrations on the street and warnings
established which will enable more centralised
from experts against allowing extreme levels of
control. Whenever needed, hosting and service
surveillance and censorship, the legislation passed
provider companies are obliged to provide a record
in mid-February 2014.17
of all online activity for each user.
According to the new law:
In summary, while Turkey has constitutional
• The President of TIB is entitled to remove any protection of freedom of expression and limits must
website should he conclude that they are be prescribed by law, in practice serious violations
interfering with privacy. On the other hand, the are taking place. While internet regulation in Turkey
owners of the website must get a court order to is set out in law, these laws do not comply with
reinstate their website. international human rights standards on freedom
• TIB is entitled to block access to websites of expression and are being misused in practice for
within four hours after the filing of a complaint, censorship and to stifle diverse political opinions
without a court order. and lawful democratic debate.
16 NTVMSNBC “Erdoğan: Twitter denilen bir bela var” 2 June 2013
http://www.ntvmsnbc.com/id/25446690/
17 Catherine Stupp “Unclear internet law spells uncertain future
for free expression in Turkey” Xindex 12 February 2014 http://
www.indexoncensorship.org/2014/02/amendments-inter-
net-law-approved-turkish-parliament-remain-murky/
7 / Internet rights that went wrong in TurkeyII. Access to Content, Blocking and Filtering
T he La Rue Framework emphasises that states
must ensure there are no generic bans of online
content and sites are not prohibited solely on the
being blocked, YouTube remained the eighth-most
accessed website in Turkey during the ban.20 This
absurd inconsistency went so far that in November
basis of political or government criticism. States may 2008, Prime Minister Tayyip Erdogan stated publicly
only block online content based on lawful criteria, are that he could easily access the website and advised
obliged to provide lists of blocked websites and must the public to do the same.21
provide explanations of the reasons for blocking or During the years that YouTube was
filtering. Blocking and filtering must only take place banned, there was also the “tax issue”
if ordered by a court or other competent judicial body which was often brought up by then Turkish
and, in relation to child pornography, must be linked Minister of Transportation, Maritime Affairs
to national law enforcement strategies. and Communications Binali Yildirim who was
In Turkey, the following four areas highlight responsible for information and communication
the numerous violations of these standards: technologies policies in Turkey. Due to bilateral
blocking of entire platforms/services, access to agreements, and sales operations happening
blocked content by ordinary users, wholesale through Ireland, Google does not pay tax from the
website blocking without adequate explanation or sales made to Turkish customers. So when there
transparency, and government filtering of content were questions raised about the YouTube ban,
both directly and indirectly. Yildirim made statements such as, in June 2010:22
a. Google/YouTube “You (Google) do earn a lot of money from
By the force of both laws, there has been a great Turkey, have a branch office just for marketing
variety of websites that were banned in the last and then will not pay any tax! Then you will
seven years but what made Turkey infamous in invite Turkish journalists to your headquarters
terms of censorship most was its banning YouTube for the sake of the Internet freedom. That is not
access for more than three years between 2007 and right, it is our duty to reserve the rights of our
2010.18 The overt reason for the court decision were citizens who pay their taxes.”
the videos on YouTube considered illegal under the
Law No. 5651 that listed “insulting Turkishness” Another statement, made in November 2012 was
and “insulting Ataturk”as offences. Although that “Google has searched everything but the
YouTube claimed to have fulfilled the request from location of the tax office…”23
the public prosecutor to remove the videos, users
mainly from Greece replaced them shortly after.19
20 Kelly, Cook & Truong, eds.
During the long period of the YouTube ban, even
21 NTVMSNBC“Erdoğan: Ben YouTube’a giriyorum, siz de girin”
the least skilled internet users were able to learn to 21 November 2008 http://arsiv.ntvmsnbc.com/news/466693.
change domain name system (DNS) settings or use asp
internet protocol (IP) numbers instead of electronic 22 Ümit Kozan “Ulaştırma Bakanı: ‘Google, BTK ile görüşm-
addresses (URLs) – in doing so they were able to eye geliyor’” 12 June 2010 http://gundem.milliyet.com.tr/
have access to the banned site. Therefore despite it ulastirma-bakani-google-btk-ile-gorusmeye-geliyor-/gundem/
gundemdetay/12.06.2010/1250047/default.htm & Güneş
Tavmen “The pathology of expecting social network websites
to wave the ‘democracy flag’” 21 October 2013 https://www.
18 Tom Zeller Jr. “YouTube Banned in Turkey After Insults to opendemocracy.net/g%C3%BCne%C5%9F-tavmen/patholo-
Ataturk” 7 March 2007 http://thelede.blogs.nytimes. gy-of-expecting-social-network-websites-to-wave-%E2%80%-
com/2007/03/07/YouTube-banned-in-turkey-after-insults-to- 98democracy-flag%E2%80%99
ataturk/?_php=true&_type=blogs&_r=1YouTube 23 Milliyet “’Her şeyi arıyor, vergi dairesini aramıyor’” 8
19 Associated Press “Turkey pulls plug on YouTube over Ataturk November 2012 http://ekonomi.milliyet.com.tr/-her-seyi-ari-
‘insults’” 7 March 2007 http://www.theguardian.com/ yor-vergi-dairesini-aramiyor-/ekonomi/ekonomide-
world/2007/mar/07/turkey tay/08.11.2012/1624000/default.htm
8 / Internet rights that went wrong in TurkeyIn late March 2014, following the alleged regardless of what the international community
corruption revealed on YouTube, another hacked said, it got blocked in March 2014. That decision
phone call revealing the alleged discussion of Syria was also taken without a court order but was
plans between the minister of foreign affairs and enabled by the recent changes in Law 5651 as
the chief of intelligence led to another blockade explained above.27 In reply to citizen reaction
of the YouTube website. This time, the blockade and the press, BTK made a statement saying that
was enabled without any court order, under the Twitter had breached privacy of individuals and
amendments made to Law 5651.24 Defying several therefore in response to the complaints, it was
court decisions that challenged the legitimacy of completely blocked.28 Two weeks later, the ban
the YouTube blockade, government authorities was lifted following an administrative court order
insisted on keeping YouTube inaccessible for several from Ankara. As the international community
months. However when the constitutional court, were closely monitoring the current affairs in the
which is the highest court in the country, ordered country, this censorship yielded many reactions
the access to be restored as the ban impeached the from international organisations including the
right to information and freedom of speech, the ban Association for Progressive Communications.29
was finally lifted in early June.25 Nonetheless, during the Twitter blockade,
Access to the Google Sites hosting platform internet users in Turkey were once again able
has been another troublesome issue. Because to circumvent this censorship thanks to their
of a criminal court decision from Denizli in 2009 previous experiences. However, simply changing
regarding Ataturk being insulted on a single page DNS settings did not work this time as the new
on Google Sites, the entire hosting platform was articles in Law 5651 required redirection of network
kept blocked for close to five years. In 2012, as routes and getting correct information from the
a consequence of a litigation started by Ahmet DNS was disabled. So users found themselves
Yildirim who also had a website on Google Sites, redirected to other websites controlled by local
the European Court of Human Rights (ECHR) service providers.30 This led to widespread adoption
found Turkey guilty of impeding the exercise of of virtual private network (VPN)31 services as
free speech on the internet. The ECHR further instructions on how to install and use VPN and
stated that likewise decisions by local courts to how to make use of Tor were spread online.32 To the
block entire websites or services due to content amusement of the internet community, tweets in
on a single page violated internet users’ right Turkish have gone up 138% on the days Twitter was
to information.26 However, access to the whole banned.33
platform continued to be blocked until mid-2014
defying the ECHR verdict. This has been one of the
flagship examples of Turkish citizens defending
their right to information on the internet on legal
grounds. 27 Constanze Letsch “Turkey Twitter users flout Erdogan ban on
micro-blogging site” 21 March 2014 http://www.theguardian.
b. Twitter com/world/2014/mar/21/turkey-twitter-users-flout-ban-erdo-
gan
Just before the March 2014 mayoral elections, 28 Kevin Rawlinson “Turkey blocks use of Twitter after prime
Twitter came under scrutiny by Turkey’s minister attacks social media site 21 March 2014 http://www.
government after tapes with hacked phone theguardian.com/world/2014/mar/21/turkey-blocks-twit-
conversations were disseminated through ter-prime-minister
anonymous accounts on Twitter. After Prime 29 “Turkey violates human rights by banning Twitter” ( March
2014) www.apc.org/en/node/19101/
Minister Erdogan promised to “eradicate” Twitter
30 Kathy Brown “The Internet Society on Turkey’s Internet Traffic”
(Internet Society, 2014) http://www.internetsociety.org/inter-
net-society-turkey-internet-traffic
24 Andrew J. Barden “Turkey Blocks YouTube after Syria Incursion 31 VPN allows users get connected through a remote virtual
Plans Leaked” 28 March 2014 http://www.bloomberg.com/ network that might have different privileges than the private
news/2014-03-27/turkey-blocks-youtube-after-leak-of-syria- network.
incursion-planning.html 32 Tor is a free application bundle and an open network designed
25 BBC News “Turkish court orders YouTube access to be to keep anonymity online. For more details, see: https://www.
restored” 29 May 2014 http://www.bbc.com/news/technolo- torproject.org/
gy-27623640 33 Karyne Levy “Tweets In Turkey Are Up 138% Even Though
26 Freedom House (New York: Freedom House, 2013), 1–14 The Country Banned Twitter” 21 March 2014 http://www.
http://freedomhouse.org/sites/default/files/resources/ businessinsider.com/turkey-bans-twitter-but-more-people-
FOTN%202013_Turkey.pdf start-tweeting-2014-3#ixzz2wmb5KBJQv
9 / Internet rights that went wrong in Turkeyc. Other Blocked Websites authorities. This filtering application was called the
Apart from the content-related blockades, many “Safe Internet Application.” The aim, as declared
websites are inaccessible in Turkey due to copyright by BTK, was to protect children from harmful
violations. Grooveshark, the music streaming content like explicit sexuality and drug sales.40
website, has been blocked in Turkey since 2010 by The first draft was too flawed both technically
a court order.34 In March 2011, access to Blogspot and legally, and within a few months, there were
was blocked following a complaint from Digiturk, a many amendments to the original draft. Originally
Turkish Satellite TV provider, as some blogs were it proposed four main filter categories: domestic,
reported to have distributed broadcast materials children, family and standard. In later versions of
under Digiturk’s ownership.35 In reaction to the ban, the legislation, the domestic filter category was
the Internet Technologies Association in Turkey filed abolished. That was due to its annihilating net
a case reporting Digiturk’s request to block a website neutrality principles by allowing users to have
with four million Turkish users through blocking the access only to domestic, Turkish, websites.41
IP address, not the individual electronic addresses As a consequence of the BTK initiative, one
of offending sites and pages.36 Digiturk, which had of the world’s largest civil campaigns against
become the nemesis of millions of bloggers, also censorships on the Internet began in Turkey.
sued Google with the claim that blocking the whole On 15 May 2011, a demonstration called “Don’t
IP address was the fault of Google. Consequently, a touch my Internet” took place in Istanbul at which
few weeks later, the order was removed as Google 50,000 people marched in Taksim.42 Moreover, an
blocked only particular blogs for violating IPR laws.37 independent media outlet Bianet and Alternative
In September 2008, the evolutionary biologist Information Technologies Association (ABD)
Richard Dawkins’ website was also blocked as a appealed to the higher court.43 After the protests,
result of request from Adnan Oktar, the leader of an BTK backed down and declared that unless users
Islamic group defending creationism, though it is opted in for a filter, they would automatically be
still unclear under which law the order was given.38 under the “standard” category, which is the same as
These are just a few examples of the thousands the previous internet service44. This meant that the
of websites blocked pursuant to Law 5651 and Law internet service provided to “standard” users would
5846. For example, many LGBT related websites have be censored only as much as before the legislation.
also been blocked although they did not contain any By November 2011, the filtered Internet was
sexual material.39 In addition, there are thousands available for free to those who demanded it. At
of pornography websites blocked directly by TIB and first glance, preventing children from having
BTK without a court order. access to harmful content seems a positive step
for internet use. However, the fact that it is only
d. Filtering the state authority BTK that has all the power to
In February 2011, BTK came up with draft decide what is harmful and what is not, was seen
legislation to enforce a countrywide mandatory
filtering system maintained and controlled by state 40 Alternatif Bilisim “BTK 4 Ağustos 2011 Güvenli İnternet
Hizmetine İlişkin Usul ve esaslar Taslağı Değerlendirmesi”
Accessed 28 August 2014 https://www.alternatifbilisim.org/
34 Milliyet “Grooveshark da Artik Yasak” 9 September 2010 wiki/BTK_4_A%C4%9Fustos_2011_G%C3%BCvenli_%C4%B-
http://www.milliyet.com.tr/grooveshark-da-artik-yasak/ 0nternet_Hizmetine_%C4%B0li%C5%9Fkin_Usul_ve_esaslar_
yasam/haberdetay/09.09.2010/1286973/default.htm Tasla%C4%9F%C4%B1_De%C4%9Ferlendirmesi
35 Erisa Dautaj Şenerdem “Blogger becomes latest victim of 41 Ibid.
Turkish Internet Bans” 2 March 2011 http://www.hurri- 42 NTVMSNBC “Paylaş Türk ve dünya basınında ‘internetime
yetdailynews.com/default.aspx?pageid=438&n=blog- dokunma’” 16 May 2011 http://www.ntvmsnbc.com/
spot-is-banned-2011-03-02 id/25213509/
36 NTVMSNBC “Digiturk için suç duyurusu” NTVMSNBC.com 7 For a photo and a description of the demonstration, see:
March 2011 http://www.ntvmsnbc.com/id/25189798/ http://commons.wikimedia.org/wiki/File:Turkey_internet_
37 Bianet “Blogspot’a Erisim Yasagi Kalkiyor” 15 March 2011 ban_protest_2011.jpg
http://www.bianet.org/bianet/ifade-ozgurlugu/128577-blog- 43 Alternatif Bilişim “BTK Filtre Uygulaması Danıştay Davası
spot-a-erisim-yasagi-kalkiyor Basın Bildirisi” Accessed 28 August 2014 https://www.
38 Riazat Butt “Turkish court bans Richard Dawkins website” 18 alternatifbilisim.org/wiki/BTK_Filtre_Uygulamas%C4%B1_
September 2008 http://www.theguardian.com/world/2008/ Dan%C4%B1%C5%9Ftay_Davas%C4%B1_Bas%C4%B1n_Bildi-
sep/18/turkey risi
39 Mariah Pittman “Turkey Really Doesn’t Want Gay People to Have 44 Milliyet “Güvenli internet dönemi başladı” 22 November 2011
Sex” Vice 4 October 2013 http://www.milliyet.com.tr/guvenli-internet-donemi-basla-
http://www.vice.com/en_ca/read/grindr-vs-turkey di-internet-1465897/
10 / Internet rights that went wrong in Turkeyas unacceptable. Besides, the filtering category of discourse and intolerance to criticism resulting
children is implemented automatically in most of in direct and indirect silencing of online dissent.
the schools so its effect was felt not only for those At the same time, these attempts to restrict
who opt in. freedom of expression online are being resisted
Moreover, there is a very tight filtering system in by diverse civil society groups. Movements for
all state offices. Anecdotally, a Constitutional Court democratisation have developed and there has
member reported to the author they have no access been unprecedented mass mobilisation to protect
to many verdicts because of the filtering system. For the freedom of expression online and offline,
instance, a search for online legal materials on hate forcing the government to retract in some cases.
crimes against LGBT people are almost impossible However, the government continues to violate
to carry out due to blocked key words. Subtle or the right to freedom of expression online with
not, filtering appears to be another big obstacle for both generic bans of online content and sites
right to information in Turkey. being prohibited solely on the basis of political or
In summary, these examples show that government criticism. There are no lists of blocked
freedom of expression online is under threat websites, or explanations of the reasons for
in Turkey. Government violation of freedom of blocking or filtering. Blocking and filtering mostly
expression online is mostly linked to offline takes place without court order and is difficult to
political issues, including a conservative political challenge.
11 / Internet rights that went wrong in TurkeyIII. Intermediary Liability
T he La Rue Framework makes it clear that the
government cannot delegate censorship to
private entities and cannot ask private companies
There is also censorship by intermediaries
beyond that which is permitted by law. Facebook has
openly failed to be impartial when removing many
to violate human rights. States can only ask pages aimed at the government even if these pages
internet intermediaries to prevent access to abided by the laws.46 Perhaps that is why then-
content or disclose private information in very minister Yildirim publicly stated that the government
strictly limited circumstances (such as for criminal was in good collaboration with Facebook.47
justice) and then only by court order. Remedies Right after the Gezi protests, in late July 2013,
must be available for those affected by actions of Facebook started to shut down pages of several
private companies and states must disclose details Kurdish politicians’ affiliated with Peace and
of content removal requests. However, in Turkey, Democracy Party (BDP). The reason given by the
the government has changed laws to increase company was their general policy on avoiding
liability of intermediaries and extend their role in terrorist actions on Facebook and claims there
censorship. Private companies have also failed to were images that praised terror groups on these
uphold the right to freedom of expression online pages. These images were in fact taken from a
even where Turkish citizens have not violated local legal rally of a legal political party As a result
laws. of many complaint actions taken by Kurdish
Until the recent legislation in February 2014 (the organisations and human rights activists within
recently amended law 5651), ISPs, hosting services and outside of Turkey, according to the news
and content providers were not directly responsible website firatnews.com.48 Facebook eventually
for preventing illegitimate content. Despite this, admitted that they might have made a ‘mistake.’49
the government did request content takedown. For Another ill-judged example from Facebook was
example, in April 2011, TIB sent a warning letter to the removal of pages of LGBT civil rights group
hosting companies in Turkey with a list of 138 words from Eskisehir, MorEl (Purple Hand) together
that cannot be used in domain and website names. with the personal pages of its activist members
The name list included such words as blonde, fat, in January 2011. Facebook declared that this was
nude, hot, Adrianne, gay, breath, local, free, girl, due to their no-tolerance policy on the practices
partner, story, confession, skirt and adult. The list of “abuse of drugs, nudity, violence, threatening
included words with no literal meaning either in of a certain individual or a group, and terrorist
Turkish or in another language like “nubile.”45 actions.”50 There was no clear evidence of which of
Fortunately this letter was not binding and could these practices were committed by MorEl.
not be applied fully due to technical difficulties A citizen journalism initiative ‘Otekilerin Postasi
in differentiating harmful content of thousands of (the Others’ Mail)’ became famous as it was blocked
websites with such generic names. by Facebook nine times in less than three years up
After that, regulations enforcing intermediary
liability went further. According to the amended
Law 5651, hosting service providers and ISPs are
46 Tavmen “The pathology of expecting social network websites
obliged to remove content that breaches other to wave the ‘democracy flag’”
articles listed under the same law. They are also 47 Ibid.
under an obligation to record all traffic under their 48 Firat News “Facebook yetkilileri sansürü kabul etti” 20
services for at least a year and up to a maximum of September 2013 http://www.firatnews.com/news/guncel/
two years (as explained above). facebook-yetkilileri-sansuru-kabul-etti.htm
49 Tavmen “The pathology of expecting social network websites
to wave the ‘democracy flag’”
45 Esra Gürmen “Turkey Almost Lost Its Internet” 2 January 2012 50 BIA News Center “Facebook’ta MorEl Eskişehir’e Sansür” 7
http://www.vice.com/read/turkey-almost-lost-its-internet- January 2011 http://www.bianet.org/bianet/toplumsal-cinsi-
0000078-v18n12 yet/127053-facebook-ta-morel-eskisehir-e-sansur
12 / Internet rights that went wrong in Turkeyto August 2014.51 One of these many removals from got blocked in March 2014, they also agreed to
Facebook was due to so-called “pornographic” “withhold” several accounts that leaked evidences
content. Right at that time, the group was writing of alleged corruption in the state.53 That was on
actively about a misogynistic claim of a speaker the basis again of the vague standards in Law 5651
on the state run TV channel, about the pregnant that “protected” information about private life.
women’s “distorted” sights. Once the ban became In summary, both the government and internet
public, Facebook sent a letter to Otekilerin Postasi intermediaries are interfering with the right to
saying they had made a mistake by accusing them freedom of expression in Turkey. The government
of “pornographic” content though they would still does that as an extension of its administration
keep the page banned.52 style. As for the intermediaries, their motivation
While certainly not to the same extent of is a combination of legal obligations and their
Facebook, Twitter was also forced to come to will to keep their relationships smooth with the
some terms with the Turkish government. After it government.
51 “Ötekilerin Postası sayfası 9. kez Facebook yönetimi tarafından
gerekçe gösterilmeden yayından kaldırıldı!” (Ötekilerin Pos-
tası, 1 August 2014) http://otekilerinpostasi.org/2014/08/01/
otekilerin-postasi-sayfasi-9-kez-facebook-yonetimi-tarafin-
dan-gerekce-gosterilmeden-yayindan-kaldirildi/
52 Özgün Çağlar “Facebook yönetimi: Ötekilerin Postası sayfası 53 Seda Sezer “Turkey Twitter accounts appear blocked after Erdo-
iade edilmeyecek” 12 July 2013 http://www.agos.com.tr/ gan court action” Reuters 20 April 2014
facebook-yonetimi-otekilerin-postasi-sayfasi-iade-edilmey- http://www.reuters.com/article/2014/04/20/us-turkey-twit-
ecek-5365.html ter-idUSBREA3J0ET20140420
13 / Internet rights that went wrong in TurkeyIV. Protection of the Right to Privacy
and Data Protection
A ccording to the La Rue Framework, states must
have adequate data and privacy protection
laws, the right to anonymity must be protected
“Everyone has the right to request the
protection of his/her personal data. This right
includes being informed of, having access to
and the state must not regularly track the online and requesting the correction and deletion
activities of human rights defenders, activists or of his/her personal data, and to be informed
opposition members. Encryption technologies whether these are used in consistency with
should be legally permitted and the state must envisaged objectives. Personal data can be
ensure that limitations on the right to privacy are processed only in cases envisaged by law or
exceptional, with safeguards to prevent abuse. by the person’s explicit consent. The principles
However, the right to privacy and data and procedures regarding the protection of
protection is another problematic issue in Turkey personal data shall be laid down in law.”
as data collection on individuals, including
biometric data, is ubiquitous. For example, at The amendment states that sub-legislation would
some private hospitals, patients are required to be prepared to further define the legal grounds.
give a full palm scan should they wish to claim But in Turkey, the draft law on private data
benefits from the social security system. This protection has a long and winding history dating
application has been highly controversial54 Despite back to 1989. Even after 25 years, it has not been
such intense data gathering, there is no proper passed by parliament and the draft law is still
legal framework to regulate the right to privacy waiting at the prime minister’s office to be sent to
and data protection. Moreover, a lack of legal the parliament to come into force.56 Needless to
obligations around how to keep data securely and say, the draft law has been modified many times,
an institution to monitor the applications may also adjusting to the conditions of the day by several
result in data centres being vulnerable to cyber commissions directed by the ministry of justice.
attacks. However its continued status as a draft moving
According to the Article 135 in the Turkish back and forth between the prime minister’s office,
Criminal Code, illegal data processing is a crime. the parliament and the ministry of justice means
However, the definition of the conditions under that the right to privacy and data protection in
which it is a crime is absent. Turkey is not protected.
However, in 2010, through the amendments In addition to impairing civil rights severely,
in the Constitution, the right to privacy and data this has many other implications for Turkey such
protection are defined as basic constitutional as the EU classifying it as a non-secure third-party
rights. country in terms of privacy and data protection.
According to the paragraph added by Act Consequently, Turkey cannot sign agreements
5982:55 on operational cooperation with the Europol
and EUROJUST and it cannot get involved in the
Schengen Information System due to lack of data
privacy.57
54 Milliyet “Avuç içi okutma sistemi için kritik uyarı” 3 December 56 For a copy of the draft law, see: http://www.kgm.adalet.gov.tr/
2013 http://www.milliyet.com.tr/avuc-ici-okutma-sistemi-icin/ Tasariasamalari/Basbakanlik/Basbakanlik.html
ekonomi/detay/1801889/default.htm 57 TiHK (Turkey: TiHK, May 2012 http://www.tihk.gov.tr/www/
55 The full text of the act can be found online, at: http://www.ilo. files/kisisel-verilerin-korunmas%C4%B1-kanun-tasar%C4%B-
org/aids/legislation/WCMS_150722/lang--en/index.htm 1si-hakkinda-bilgi-notu.pdf
14 / Internet rights that went wrong in TurkeyV. Legitimate Expression
F rank La Rue highlighted that states have an
obligation to ensure that legitimate freedom
of expression is not criminalised. Journalists
While Twitter had been the main means of
information dissemination and communication
during the Gezi protests, it became a trap for many
and bloggers should be protected against abuse users. On 5 June 2013, around time when Gezi
and intimidation and expression should only be protests took place, 38 people were reported to
restricted in very narrow circumstances such as be taken under detention because of what they
where there is a threat of imminent violence and have been writing in support of Gezi on Twitter.61
a direct connection between the expression in In February 2014 an indictment filed by the public
question and the threat of violence. prosecutor asked for three years of prison for 29
However, there have been several very high of them. In April 2014, Prime Minister Erdogan
profile cases of Turkish citizens being prosecuted intervened in the case as third party and as the
and given severe criminal penalties for expressing victim.62 The case is still proceeding and no verdict
their views on social media or on websites. For has been given yet.
example, pianist and composer Fazil Say was Many cases have also been filed using
given a ten-month sentence due to committing anti-terrorism laws. For example, in 2011,
blasphemy on Twitter. His penalty for insulting journalist Recep Okuyucu was prosecuted for
religion was later suspended unless he committed allegedly supporting terrorist groups because he
a similar crime in the following five years.58 This downloaded Kurdish music and had access to the
court decision led to an outrage both in Turkey blocked Kurdish Firat News Agency website.63
and in international community. The English group
PEN prepared an open letter signed by many UK
musicians and writers addressed to then Minister
of Justice Sadullah Ergin.59 Another blasphemy
case targeted linguist and former newspaper
columnist Sevan Nisanyan in May 2013. He was
given a thirteen-and-a-half month sentence for
attacking part of population’s religious values on
his own blog.60
58 Doğan News Agency “Turkish pianist Fazıl Say sentenced to 10
months in prison for blasphemy in retrial” Hurriyet Daily News
http://www.hurriyetdailynews.com/turkish-pianist-fazil-say-
sentenced-to-10-months-in-prison-for-blasphemy-in-retrial.
aspx?PageID=238&NID=54824&NewsCatID=341
59 Cat Lucas “PEN protests the sentencing of Fazıl Say” (English 61 Anadolu Ajansi “Erdoğan İzmir’deki “twitter davası”na
PEN: 15 April 2013) http://www.englishpen.org/turkey-pen- müdahil oldu” 21 April 2014 http://www.aa.com.tr/tr/tur-
protests-the-sentencing-of-fazil-say/ kiye/316344--basbakan-erdogan-izmirdeki-quot-twitter-da-
60 T24 News “Sevan Nişanyan 13.5 ay hapis cezasına vasi-quot-na-mudahil-oldu
çarptırıldı” 22 May 2013 http://t24.com.tr/haber/sevan-ni- 62 Ibid.
sanyan-135-ay-hapis-cezasina-carptirildi,230422 63 Freedom on the Net 2013, Freedom House
15 / Internet rights that went wrong in TurkeyVI. Cyber-attacks
S tates are not permitted to carry out cyber-
attacks and they must also protect their
citizens from cyber-attacks. However, in Turkey
Ottomans under the commandment of Tayyip
Erdogan” hacked the website by placing a note
calling Armenians “traitors.” Kaos GL, an LGBT
there have been numerous cyber-attacks from rights civil initiative is another victim of regular
non-state actors, some as an alleged form of civil cyber attacks. After being hacked at several
protest, some as a way to attack human rights occasions, they were left with notes on their
defenders and legitimate online expression. website containing disguised hate speech.
Consequently, after one of the attacks in 2012,
There have been several technical attacks by
two hackers were caught and sentenced to six
worldwide famous hacktivist group Anonymous in
months prison under the Turkish Penal Code
Turkey in protest against the state authorities. In
244/3.66
early 2012, the collective launched a distributed
denial of service (DDoS) attack against several
There has been no known cyber attacks carried
public bodies including TIB and BTK.64
out by Turkish administration. However, it is a
A frequent cyber attack victim in Turkey is Agos, a commonly used practice against political groups
newspaper run by Armenian Turkish citizens. The by non-state actors. Moreover, as mentioned
website of Agos has been hacked by racist groups above, the lack of solid legal framework on data
several times, with the latest attack occurring in protection makes the country prone to cyber
July 2014.65 A group calling themselves “neo- attacks.
64 BIA News Center “Anonymous Hacked BTK Database”
15 February 2012 http://www.bianet.org/english/
world/136178%E2%80%90anonymous%E2%80%90%20
hacked%E2%80%90btk%E2%80%90database 66 kaosGL.org “kaosGL.org Sitesine Yönelik Saldırıya Hapis
65 T24 News “Agos hacklendi: Sizin gibi vatan hainlerini çok Cezası!” kaosGL.org, 20 March 2014 http://www.kaosgl.org/
gördük!” 9 July 2014 http://t24.com.tr/haber/agos-hacklen- sayfa.php?id=16112 For an update in English, see: http://
di-sizin-gibi-vatan-hainlerini-cok-gorduk,263774 lgbtinewsturkey.com/2014/03/23/prison-sentence-for-cyber-
attack-on-kaosgl/
16 / Internet rights that went wrong in TurkeyVII. Conclusions and recommendations
T here is a constant struggle for democratisation
and freedom in Turkey. The internet in Turkey
is not exempt from these struggles. On the
deliberative process of legislation preparation
with participation of multiple stakeholders. That
is, of course, closely related to the improvements
contrary, it has become the main medium for that have to be made in the general political
resistance. On the one hand, there are draconian atmosphere in the country. Unless the Turkish
rules limiting access to and expression on the government changes its approach towards the
internet. On the other hand, there is a strong civil right to information and freedom of expression, the
society determined to keep it open and safe. As future of the country looks rather bleak.
the majority of the population is young and can
In order to improve and sustain open and safe
be very innovative when protecting their means of
internet, Turkish civil society should implement the
communication, the struggle will likely continue.
following:
Civil society is trying to leverage awareness around
censorship and surveillance on the internet and • More skills sharing on use of alternative
is very active. ABD, Pirate Party Turkey, Engelli technologies so that citizens are empowered
Web and many citizen journalism initiatives have to use technologies to claim their rights
proved to be effective in creating public resistance
• More activities directed to raise awareness
for the future. Although that did not prevent the
about surveillance practices by the
government from taking more restrictive measures
government and corporate firms
on the internet, the internet by its nature is hard
to control fully thanks to technical tools created • Capacity building among civil society
to keep it open and safe. That said, circumventing
• Protections for political expression including
censorship and surveillance is not a sustainable
for LBGT groups
solution. The legal battleground needs to gain
more priority as the laws as they are today allow • Transparent policy making processes that
very easy on-demand censorship based on include all stakeholders.
subjective judgements.
Most importantly, online and offline struggles for
Hacking, using VPNs, and changing DNS settings democracy and to uphold the right to information
cannot be the only future for internet users in and freedom of expression should be linked. The
Turkey looking for a free and open internet. announcement that the IGF would take place
These tools and techniques are useful for those in Istanbul amidst heightened censorship and
with the technical knowledge, but do not offer surveillance of the internet in Turkey is a positive
a systematic solution. The impediments on development. As people who struggle for a free
legitimate expression area pressing issue and and open internet, we hope that the IGF will
result in self-censorship that cannot be quantified. provide an opportunity to challenge the murky
Therefore, Turkey needs a transparent and a situation and create awareness at a broader level.
17 / Internet rights that went wrong in TurkeyCreative Commons Attribution 3.0 Licence
Some rights reserved.
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