The adventures with disinformation legislation in Turkey and Europe

The adventures with disinformation legislation in Turkey and Europe
We finally had a baby called “the Disinformation Law”, only a month and a half old...  In fact, it has a long name, such as “Law on Amendments to the Press Law and Certain Laws”, but it is more commonly known as the “Disinformation Law.” Unfortunately, we cannot say that it was born as a healthy and beautiful baby; it was born with a disability. After a painful birth process, it is now rocking in its cradle.  The Law provides journalists with a kind of “order” with amendments to the press card legislation and new provisions covering internet journalism websites. In addition, it shapes the Press Advertisement Agency, imposes obligations on social network providers, and introduces new concepts such as “over-the-top services.” The issue of disinformation, which is the initial point of the law, is squeezed into a single article within the great hustle and bustle of the law and looks around with the bewilderment of “What am I doing here?” The most discussed article was Article 29, allegedly intended to prevent the information pollution observed on social media. However, the regulations that manifested themselves as “restraint” in other articles suddenly started to refer to the sanction of imprisonment when it concerned the issue of disinformation.  For this reason, legal circles and civil society organisations in Turkey have been very vocal about the drawbacks of the law. 

Everyone but the regulatory authorities are worried

The Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) also requested an urgent opinion on the most controversial section of the law, “false or misleading information” from the Venice Commission, the Council of Europe's advisory body on constitutional matters, which advises countries on legislation. The Commission said that if the draft law were to be adopted, it would interfere with freedom of expression in Turkey. It also noted that the sanction of one to three years imprisonment would not be proportionate to the legitimate aims of the law, namely the protection of national security, public health and the protection of the rights of individuals. Eventually, the law entered into force on 18 October 2020 without paying heed to the concerns and alerts voiced. Based on the metaphor of a baby, the doctors' suggestion to abort the baby on the grounds that “if it is born with this disability, it will make your life hell” was not accepted. Despite the family's warnings, the mother gave birth to the baby. The baby is doing well at the moment, but everyone except the mother is worried about what will happen when the baby starts to stand on two legs and walk. However, the legislators claimed that they were motivated by a compelling need.  The justification of the draft law stated that its primary purpose was to combat disinformation and illegal content produced by fake names and accounts and to protect the online rights of Turkish citizens. Furthermore, it was stated that the regulations in countries such as the United States, Germany, France and the United Kingdom were analysed and adapted during the drafting process. PACE recommended measures to counter disinformation, propaganda and fake news to the European Union member states. While recognising that disinformation has become a global concern, the Council emphasised the need to be sensitive about the steps to be taken against disinformation, noting that solutions to prevent disinformation can easily lead to censorship and content restriction. “History is replete with examples of regimes imposing imprisonment sentences on journalists and human rights defenders to suppress opposition,” the Council warned, adding that the most problematic practice against disinformation is its "criminalisation". Article 29, also added to the Turkish Penal Code, was amended as follows: “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. Furthermore, 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.” However, as seen, any of the regulations' notions were flexible and ambiguous enough to be easily manipulated and utilised wherever desired. 

Only Greece has a similar law

The official statement that the law had been aligned with similar regulations in European countries was also untrue. In 2017, Germany passed a law called the Network Enforcement Act for Social Networks (NetzDG). The law does not provide for criminal prosecution of persons who disseminate “false or misleading information.” It merely assigns responsibility to social media platforms for hate speech and other criminal offences.  France adopted a regulation similar to the one in Germany. Approved on 13 May 2020, the Avia Law, which combats hate content on the internet, requires internet platforms and search engines to remove relevant content within 24 hours after warnings. Those who do not comply with this law will be sanctioned with a fine of up to €1.2 million. The law applies to content that incites hatred, violence, insult or incitement to hate on the grounds of ethnicity, religion, sexual orientation or gender identity and does not include any provisions on the criminal prosecution of those who disseminate “false or misleading information.” The Draft Online Safety Bill published by the UK government on 2 May 2021 also imposes obligations on online content-sharing platforms and search engines to protect users. In addition, the bill regulates social media platforms to take responsibility for user-generated content. The bill does not include a provision that envisages sanctions or criminal prosecution for content related to journalism. Strangely enough, the regulation most similar to ours in terms of content and sanctions is in neighbouring Greece. They, too, included a particular article in their penal code stating that “Whoever disseminates or publishes false news in public or via the internet that may cause anxiety or fear among citizens or undermine public confidence in the national economy, the country's defence capacity or public health shall be punished with imprisonment from three months to five years.” However, this article has never been applied in areas other than the Covid-19 outbreak.  Apparently, European countries (except Greece), cited as a source of inspiration for the criminalisation of false or misleading information, do not stipulate imprisonment. Instead, they merely impose different obligations on internet platforms in relation to illegal content. Let's see what the future holds for us. The following remarks by Prof Adem Sözüer, Head of the Department of Criminal and Criminal Procedure Law at Istanbul University, give clues about the future: “The important point in this law is the ambiguity of the type of offence. It is unclear who will determine whether a post is untrue or not. Disinformation must certainly be prevented. However, criminal law is not the path to this. There are other ways. It is pluralism, the dissemination of freedom of expression and the right to criticise. Correct information can only emerge in such a manner. However, an investigation can only be initiated by simply stating ‘This information is untrue’ in this type of offence. It even brings arrest. Therefore, we are facing a serious problem in terms of freedom of expression, freedom of the press and all social network users.”   *This article series is supported by the Consulate General of the Federal Republic of Germany in Istanbul

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