‘Tailors’ against the government's construction of truth: CSOs vs the Censorship Law

HATİCE DEMİR

Destroyed by shopping, by the alphabet, by rubbish threads and the attempt to fix everything… - Terziler Geldiler, Turgut Uyar

In this article, I will address the amendment to the Turkish Penal Code (TCK) made by Law No. 7418 on the Amendment of the Press Law and Certain Laws, which was announced by the government as the “Disinformation Law” and defined as the “Censorship Law” by the opposition public opinion in terms of its impacts on civil society organisations and the risks it may pose. This article will focus on how the monitoring, reporting and advocacy activities of civil society organisations can fall within the scope of the relevant criminal law article and how to combat possible risks when the censorship law and the disinformation newsletter are combined with the voice of civil society organisations that are trying to be suppressed through various legal regulations. The objective of Law No. 7418 has been much debated. There are various reasons why the law announced by the government as the “Disinformation Law” is insistently named the “Censorship Law” by the political and social opposition. First of all, the relevant law not only bears the risk of preventing the truth from reaching people but also imposes on society that “truth can only be true when it is not denied and declared illegitimate by the government”; in other words, the monopoly of truth lies with the government. This makes the law not only an interference against the press. Even so, while it requires unwavering opposition, the law in its current form closely concerns “everyone” who has a problem with making the truth known. Rights defenders express concern that civil society organisations, which are among the critical voices of social opposition against the government's constructions of truth, will be one of the main targets of censorship with this law.

A brief overview of the last three years of the legal basis of civil society organisations

Certain developments in recent years have brought many civil society organisations together and pushed them to take a common position. The most painful of these was Law No. 7262 on the Prevention of Financing the Proliferation of Weapons of Mass Destruction. The part of the law concerning civil society organisations was related to amendments to the Law on Associations and the Law on Aid Collection to prevent the financing of terrorism through civil society organisations. While the law was still in draft form, a website called “Civil Society Cannot be Silenced” was established by human rights defenders. 694 civil society organisations called for the removal of articles on associations, foundations and fundraising from the bill on the grounds that they violate the constitution and international human rights conventions binding us. However, this call was not met, and the parliament approved the law. (An in-depth assessment of the law) While the law was debated, hundreds of civil society organisations were inspected. In the introduction of its report on the law, Amnesty summed up the law's impact on civil society organisations by saying: “The new law hangs over us like the sword of Damocles.” While the law is still hanging over us like the sword of Damocles, Turkey has rapidly entered a new phase where the government and its partners explicitly target civil society organisations through closure cases against human rights defenders.

Does it end when the government says ‘It's over’: Closure cases

While the climate of fear and self-censorship created by Law No. 7262 persisted, Turkey was shocked by two important association closure cases last year. In the first one, the process started with the targeting of the Tarlabaşı Community Support Association (Tarlabaşı Community Centre - TTM) by the pro-government press and the systematic and manipulative reporting of its past activities. Subsequently, the association underwent an audit, and two separate court cases were filed for “detection of non-existence” and “dissolution of the association.” While the court case with the demand for “dissolution of the association” increased solidarity among rights defenders, it also sprouted the seeds of fear, as issues concerning all civil society organisations were the subject of the closure case. (For detailed information see press releases and information notes on https://iyikivarsinttm.org) As the impact of the lawsuit filed against TTM was still ongoing, another closure case was introduced and included to the agenda. A closure proceeding was filed against the Association for the Platform to Stop Femicide (KCDP) on the grounds that it “aims to disintegrate the family and society” and “insults the President.” The closure cases against these two associations, which played a significant role in the human rights movement in Turkey with their activities, monitoring and reporting, were neither the beginning nor the end of civil society's ordeal. Fines imposed on the Migration Monitoring Association and trials against the association's executives, pre-trial detentions of association executives, trials against the Co-Chair of the Human Rights Association due to the association's work, detentions and judicial harassment against employees and volunteers of women's associations operating in Kurdish provinces such as Rosa Women's Association, systematic targeting and distortions against LGBTI+ associations and much more are some of the everyday struggles of civil society in Turkey… (A constantly updated resource for those who wish to follow up the developments closely: https://ihsda.org)

Will the Censorship Law bypass civil society organisations?

The censorship law will be one of the most effective instruments to silence civil society organisations if we do not raise enough voices. Even the wording of the article added to the Turkish Penal Code by the law demonstrates the lack of legal foreseeability and determinability:

Publicly disseminating misleading information to the public” ARTICLE 217/A- (l) Any person who publicly disseminates any false information concerning the domestic and foreign security, public order and public health of the country with the sole intention of creating concern, fear or panic among the public, in a manner likely to disturb public peace, shall be sentenced to imprisonment from one year to three years. (2) If the offence is committed by concealing the real identity of the perpetrator or within the framework of the activities of an organisation, the penalty imposed as per the above paragraph shall be increased by half.

In its opinion on the draft law, the Venice Commission, which is the advisory body of the Council of Europe on constitutional matters and gives recommendations on legislation in countries, describes the potential impact of the proposed amendments on civil society as follows: “The draft provision (to be added to the Turkish Penal Code) is therefore meant to apply to any individual, be it a journalist, a politician, an activist, a specialised professional, or the individual citizen. It also covers groups of individuals, organisations, media outlets, online platforms or other intermediaries.”  And the law is now in force… Let me open a parenthesis here and refer to the Disinformation Newsletters. The newsletters, which the Directorate of Communication started to issue immediately after the law, became one of Turkey's new markers of truth. Here, sometimes a tweet by a member of parliament is refuted, sometimes a rape statement is labelled as a lie, and occasionally various reports and statistics are described as manipulative and alleged to spread disinformation. Social media users or news websites that voice the allegations in the newsletter are labelled as “disseminators of false news.” It is not difficult to envisage that these newsletters will soon be the basis for prosecution indictments. When analysing the law, it may first come to mind that it will not affect civil society organisations since the perpetrator of the offence can only be a natural person. However, at this point, please remember that civil society organisations are composed of real persons and that the reports they publish, the press releases they issue, and the public announcements they make are activities conducted by real persons. Association A was founded to contribute to gender equality and to raise awareness on violence against women and LGBTI+ persons. To report hate crimes committed against LGBTI+ persons in the last five years and to compare its data with the state's data, the association applied for information to the relevant ministries but received no response. Subsequently, the Association disseminated an announcement titled “Ministry X hides hate crime data!” on its social media accounts. In the case of the above example, it would be kind-hearted in the best-case scenario to say that it is impossible for us to see this sharing of the association in the Disinformation Newsletters and that the executives/employees of the association can never be prosecuted under Article 217/A of the Turkish Penal Code. However, we know from the grounds given in the case against KCDP that the fact that the executives or employees of an association have investigation files opened for various reasons can be used as grounds for the closure of the association. Sevda Bayram, one of the KCDP lawyers, said, “The name of the association is not mentioned in other files, but the names of individuals are. We will submit a detailed statement. On the dates of the incidents subject to the files, no investigation was made to determine whether the people were association executives or not. The records illegally kept by the police were requested despite the violation. It was stated that the association was not mentioned in any of them. There is no offence in any of them.”

In conclusion: Say no to censorship

This law will further widen the gap between the witch-hunt conducted by the government on the grounds of combating disinformation and the narrative of “Turkey as a country of freedoms and security”, which is also constantly voiced by the government. Unfortunately, there is no protection system I can recommend against all these threats of sanctions and closure. Because the law has no legal foreseeability. The only way to be protected against the law and its sanctions is to acknowledge the “fairy tale of freedom and security”… What civil society organisations and their rights defenders need to do now is to resist this construction of truth engineered by the government; to never give up telling what we see, what we know, and what we hear, demanding what is rightfully ours, monitoring and demanding accountability, and putting a stop to censorship! *This article series is supported by the Consulate General of the Federal Republic of Germany in Istanbul