17 February 2023

Shutting Down the Internet to Shut Down Criticism

The Turkish Government’s “Legal” Censorship in the Earthquakes’ Aftermath

Two massive earthquakes, measured 7.8 and 7.5 in magnitude, hit the southwestern part of Turkey, destroying ten cities and affecting more than 13 million people with thousands of deaths and injuries. Both earthquakes produced a humanitarian emergency which cannot be put into words. Against this incomprehensible backdrop, it is all the more disturbing that the authorities shut Turkey off from the internet and global connectivity.

In the aftermath of earthquakes, internet connectivity had enabled civil society to provide additional on- and off-site assistance through several means, such as coordinating rescue missions, identifying locations of victims and directing emergency responders, organizing heavy equipment and their operators to aid search and rescue operations, as well as launching fundraising campaigns. However, the use of social media is not seen as innocent by Turkish authorities, starting from the Gezi Park protests and corruption scandal in 2013. Immediately after the earthquakes, authorities started to use legal instruments to silence the use of social media platforms even at the expense of utilizing its benefits during catastrophic times.

This article analyses the legal bases of the restrictions imposed by the Turkish government in aftermath of earthquakes to suppress criticisms against its poor response to the disaster. The measures are legally structured as means of opening the door to arbitrary restrictions on freedom of expression.

Throttling and Limiting Access to Twitter

It is well known that the majority of Turkey’s conventional media is now controlled by conglomerates close to the government. As a result, online journalism through social media has become one of the most reliable resources to many, although it is not free from misinformation and disinformation. It has also become one of the few forums where criticism against the Turkish government can actually take place. The government is antagonized by these criticisms, especially now during the eve of the general election in May 2023. As a result, on February 8th 2023, the Turkish government irresponsibly restricted Twitter through filtering on major internet providers TTNet and Turkcell. According to Netblocks’s network data, the restriction took place approximately between 4:37 PM to 3:44 AM (local time), 11 hours and 7 minutes. This restriction was issued without explanation and disproportionately impacted the public’s (especially earthquake victims’) right to freely access and impart credible information about their loved ones and aid delivery efforts. During the restriction period, Twitter was only accessible through VPNs, enabling the circumvention of the government’s internet censorship measures. Also during this period, Erdogan visited the disaster-hit region for the first time. The restriction enabled him to stifle some  anger continuing to mount over his government’s aid effort.

There are three legal ways for the Turkish government to issue throttling and limiting access to service providers – all open to arbitrary determination and manipulation. First, under Article 60 (10) of Law No. 5809 on Electronic Communications Act (“ECA”), the President can determine the precautions to be taken. He, then, notifies the Information and Communication Technologies Authority (“ICTA”) for their implementation, in cases of exigent circumstances. This specific provision was added during the state of emergency after the coup attempt in 2016 by Decree Law No KHK/671 Article 25.The law does not limit the scope nor content of the precautions, paving  the way for arbitrary decision-making by the President. Most recently, this law was used by the President, and implemented by the ICTA across the entire country, to throttle internet services for social media platforms after the explosion in Taksim in November 2022. Thus, this provision empowers the government with a wider range of power to regulate the behaviours of service operators, hosting providers (including those related to dissident contents and accounts) or data centres regarding the measures that the President deems necessary.

Secondly, another amendment to the Article 60 of the ECA was introduced on October 18, 2022 (through Law No. 7418 on Amendment of Press Law). Accordingly, under Article 60(16) and 60(17) ECA, if service providers fail to comply with the authorization requirement or other obligations imposed by the ICTA, they may be subject to administrative fines amounting from 1 to 30 million Turkish Liras. In case the obligations are not satisfied within six months, the service provider will experience reduced internet traffic bandwidth of up to 95%, or blocked access to the relevant application or website. Again, what qualifies as “obligations” are determined by the ICTA or the President. There is a residual risk of arbitrary decision-making by authorities, e.g., obliging service operators to take down certain content by identifying it as disinformation.

Thirdly, another legal instrument to throttle internet access was introduced by amending Law No 5651 (widely known as the “Internet Law”) through the introduction of Law No. 7418 on Amendment of Press Law. Particularly, under Additional Provision No 4(5)(b) of the Internet Law, public prosecutors or magistrate courts can limit access to the internet traffic of service providers by up to 90%, if service providers do not comply with government access requests to the identity of individuals who are found committing the offence of “publicly disseminating information to mislead the general public”. Again, the law references various concepts, such as publicly disseminating and mislead, that are very broad and vague, and open to different interpretations. Hence, it is likely to have a chilling effect on the media and public in general.

Keeping Under “Legal” Cover

Returning to the Turkish government’s response to the devasting earthquakes, it has become clear that the government restricted Twitter access to silence any criticism of their poor responses to the crisis. By now, it has been reported that the government chose the second legal basis under Article 60(17) of the ECA. Apparently, the government throttled Twitter’s internet traffic bandwidth  as a result of its non-compliance with court decisions ordering the closure of several accounts from dissident journalists to opposing parties. Nevertheless, Omer Fatih Sayan, Turkey’s deputy minister of transport and infrastructure, later announced (paradoxically on Twitter) the government’s demands from Twitter. Demands included collaboration to combat disinformation and fake accounts, utmost care in the moderation of sensitive content, and compliance with the Law No 5651 (the third legal basis), to deal with “publicly disseminat(ed) information to mislead the general public”. Hiding behind vague, broad and open concepts, such as “publicly disseminated” or “mislead” the government obviously wants to maintain order in the wake of disaster and control communication, including those that are critical for the emergency response. It is possible to identify the same reasoning behind the government’s decision to decline Elon Musk’s proposal to send a satellite broadband service, Starlink Network, just after the earthquakes.

Disinformation Bulletin

The government is also committed to using its recently passed disinformation law to silence any voice raised by the public in the wake of the major earthquakes. In particular, through the introduction of Law No. 7418 on the Amendment of Press Law, the government enacted a new provision in the Turkish Criminal Code (Law No 5237) to combat disinformation. Accordingly, Article 217/A of the Turkish Criminal Code states that (see page 4 of the Venice Commission Opinion to the Penal Code Regarding the Provision on “False or misleading information”):

(1) Any person who publicly disseminates false information about the country’s domestic and foreign security, public order and general health, with the sole aim of creating anxiety, fear or panic among the public and in a manner that is liable to disturb public peace, shall be punished by one to three years of imprisonment.

(2) If the offense is committed by concealing the true identity of the perpetrator or within the framework of an organisation’s activities, the punishment mentioned-above is increased by one half.”

The justifications of this new provision are not aligned with legitimate global concerns against misleading information. Steps against disinformation can easily lead to censorship and constraints on legitimate content to quash dissidents. As the provision prescribes a direct criminalization, it also creates a risk of chilling effects. Particularly, it is concerning that general prohibitions on the dissemination of information based on vague and ambiguous terms are likely to result in suppressing speech especially, if it is used by political will in the absence of sufficient safeguards. Also, it is unclear whether a “like” or “retweet/repost” will be considered as “publicly disseminating”, which would provoke criminal investigations against a quite wide range of individuals that interact with certain content that is understood as false or misleading information by the government. The same vagueness problem is valid for the concepts of anxiety, fear or panic prescribed in the provision – both are open to the government’s interpretation.

In the aftermath of the earthquakes, on February 6, 2023, the Directorate of Communications launched an app, Dezenformasyon Bildirim Servisi (“DBS”), enabling individuals to report disinformation. What constitutes “disinformation” is also defined by the government itself through its periodically published disinformation bulletin. For instance, while many victims were scrambling to find loved ones, supporting  emergency rescue efforts and organizing delivery-aid, the government announced the following statement as false information: “no search and rescue teams are working in (the) affected areas” (see pages 3-4 of the Disinformation Bulletin dated on February 6, 2023).

While search and rescue teams have made great efforts to help victims from day one, there have also been several complaints and criticisms about disorganization, slow and even a lack of response to the disaster by authorities. Indeed, Erdogan himself acknowledged that the government had encountered problems. Thus, while those criticisms are very understandable expressions of the need for emergency assistance, or complaints against the poor response to the disaster, the fact that they are put under the bucket of false information pursuant to Article 217/A of the Turkish Criminal Code will likely result in a disproportionate number of criminal investigations against many innocent citizens. This was already signalled by President Erdogan when he said that “we are keeping the records of all the lies and distortions and will open his notebook when the time comes”.

Conclusion

Authoritarian governments around the world have increasingly cracked down on social media networks. The Erdogan government has a long history of restricting internet use during national emergencies, terrorist attacks or political incidents, by arguing that the government is safeguarding national security or preventing the spread of disinformation. Unfortunately, Turkey witnessed the government using legal instruments as a pretext to restrict speech again, more devastatingly, since platforms were helping people share information on arriving aid and the location of those still trapped in the rubble. It is not only the ineffectiveness of the emergency response but also the irresponsible decision on restricting the internet that has hurt society deeply and resulted in irreversible consequences.

Opinions expressed are solely the author’s and do not reflect or express the views or opinions of his employer or affiliates.


SUGGESTED CITATION  Haylamaz, Burak: Shutting Down the Internet to Shut Down Criticism: The Turkish Government’s “Legal” Censorship in the Earthquakes’ Aftermath , VerfBlog, 2023/2/17, https://verfassungsblog.de/turkey-internet-earthquake/, DOI: 10.17176/20230217-233207-0.

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