Free Speech

The final nail in the coffin: The Disinformation Act


Throughout recent history, journalism in Turkey has never been practised in a “rose garden without thorns.” On the contrary, in parallel with the ups and downs in the country’s democracy, it continued to be one of the riskiest professions. Freedom of the press faced restrictions in every period, from coup periods to state-of-emergency regimes, from turbulent coalitions to the “advanced democracy” under Erdoğan’s sole power. Still, in the last 20 years of the Justice and Development Party’s (AKP) ruling, Turkey experienced one of the darkest periods in its history, both structurally and in terms of rights and freedoms.

Until 2002, the ownership structure of the mainstream media in Turkey was shaped as follows: Either business people coming from media patronage were using their own media to put pressure on the government to grow in other sectors, or business people from different sectors who wanted to gain similar power were looking for ways to grow even more by entering the media. In other words, they were getting richer with the concessions they obtained by making their media available to the government. The first thing Erdoğan did was to disrupt this order in media ownership. But in a completely reversed way for his own interests… He had the names he had made wealthy with state tenders, establish media outlets with money paid entirely out of the people’s taxes, and had them propagandise for the government. Those who wanted to become rich were forced to withdraw from the media through various methods, and the palace turned the names it made wealthy into media bosses. 

This change in media ownership has led to 95 per cent of the media in Turkey being controlled either directly or indirectly from the palace, according to statistics by Reporters Without Borders (RSF). The remaining newspapers and TV channels have been placed under legal and financial pressure. The suppression of journalism intensified with the rise of Erdoğan’s autocratic tendencies, notably following the Gezi Park uprising in 2013. Hundreds of journalists were detained or arrested solely for their professional activities. Although there were no amendments to the laws regulating or limiting press freedoms (Anti-Terror Law, etc.), the professional activities of journalists were linked to terrorism due to the politicisation of the judiciary.

The failed coup attempt in 2016 further fuelled Erdoğan’s anger against the press. Journalists who reported news unfavourable to the government were taken into custody in the early hours of the morning. Hundreds and thousands of years of imprisonment sentences were ruled. However, this intimidation of journalists was insufficient; the corporations they worked for were also subjected to financial pressure. Critical news were sanctioned with astronomical indemnities. These newspapers were also prevented from taking advertisements through various methods, which led to financial difficulties for the newspapers. 

Until a few years ago, this picture could have been considered “satisfactory” for the government. They could control the messages reaching the voters and had no difficulty in managing perceptions. The 5 percent of the press and media organs that were not under their control did not pose a significant risk to the government. As a result of the blows they received through sentences of imprisonment and fines, these organs could only create a slight impact. However, with the heavy defeat the government suffered in the local elections in 2019 and the subsequent deepening of the impact of the economic crisis, the media outlets beyond the palace’s control turned into a significant risk for the government. The news produced in these media outlets reached large masses with the multiplier effect of social media. Thanks to digital media, the grumblings of the lower and middle classes, on which the AKP relied, began to turn into a snowball. In the early months of 2021, the YouTube videos against the government by Sedat Peker, the leader of the organised crime organisation that had fallen out with the AKP, turned into a serious threat against the palace regime. All these factors accelerated the erosion of power. As the electoral polls did not project a decisive victory for Erdoğan in the 2023 elections, it was time to completely silence the 5 per cent outside the palace’s control. And this would include not only journalists but also citizens using social media…

As of the early months of 2002, amendments to the press laws were being prepared on the grounds of combating disinformation. One of the first articles of the draft law stipulated that “fake news” would be penalised with up to three years of imprisonment. However, no modern democracy combats disinformation with penalties. Instead, they seek to produce the correct information and ensure it reaches the public through the proper channels. Thus, without limiting freedom of the press and freedom of expression, it brings the right message to society within the framework of the same freedoms. Laws enacted in Western countries, particularly to combat hate speech, are used as a source of legitimacy for antidemocratic-censorship regulations in imperfect democracies, including Turkey. While drafting the Disinformation Law, the palace regime frequently highlighted the rhetoric that “We are taking Germany as an example.” Ali Özkaya, the deputy chairperson of the Constitutional Commission of the Grand National Assembly of Turkey (TBMM) from the AKP, has made one of the most significant disinformation statements by stating, “In Germany, those who disseminate disinformation are sentenced to one to five years of imprisonment” and thereby defended the law they drafted. However, the regulation in Germany does not cover those who engage in disinformation but those who produce hate speech and disseminate content that incites violence.   

Turkey’s legal framework already enshrined legislation combating fake news and disinformation. The Turkish Penal Code (TCK) and the Press Law contain specific definitions of offences. However, the Disinformation Law, which the government introduced in the Turkish Grand National Assembly in October 2022, paves the way for the imprisonment of up to 4.5 years for content that the government does not favour, with much more vague wording.

 The most critical article of the law, Article 29, stipulates imprisonment for both journalists and citizens. Under this article, those who “publicly disseminate misleading information to the public” will be sentenced to one to three years of imprisonment. For example, those who retweet a message on Twitter and repost someone else’s content will be considered to have committed the same offence… If the perpetrator commits this “offence” anonymously, their sentence will be increased by 50 per cent, and they will be sentenced to imprisonment of up to 4.5 years. The judicial staff structured by the palace will undoubtedly decide what constitutes “misleading information for the public.”

Article 29 defines the perpetrator who “disseminates misleading information to the public” as follows:  “A person who publicly disseminates untrue information concerning the internal and external security, public order and public health of the country in a manner that is likely to disrupt public peace, with the sole intention of creating concern, fear or panic among the public…” 

Now let’s continue with examples of where this law can be applied… 

Refusing to believe the data shared by the Ministry of Health during the Covid-19 pandemic can be interpreted as “creating concern, fear or panic among the public.” Opening a debate on border security in Turkey after the bombing of Istiklal Street or discussing the possibility that the perpetrator was not a member of the PKK – contrary to what the state announced – can be considered as “false information about the internal and external security of the country.” Disbelieving the inflation figures announced by the Turkish Statistical Institute (TÜİK) and reporting on street inflation can be considered as “disturbing public peace.” In short, public institutions under the rule of the palace, with its fully politicised bureaucracy, can suppress the truth and imprison journalists, social opposition and ordinary citizens for “disseminating untrue information.”

The Disinformation Law, which intimidates the media and citizens with imprisonment, also covers websites under the scope of the Press Law with the bribe of a “press card.” Thus, digital media will also be under the control of the palace. However, at a period when journalists working for newspapers and TV channels that criticise the government are not given press cards, it would not be a prophecy to say that websites with a critical approach will not be able to enjoy this right. 

It is unlikely for digital media to survive under the new regulations. Online news organisations will have to provide their open workplace and electronic addresses so that the state can easily communicate possible fines. Websites will have to store their content for two years in case the prosecutor’s office may request it at any time. Those who fail to do so will be sentenced to fines ranging from one million liras to 30 million liras. News websites will also be obliged to publish the “right of reply and correction” sent by people who will apply to the prosecutor’s office saying “I was harmed by this news.” In addition, the news websites will have to publish the retraction decision on their homepage for 24 hours and the retraction text on the inside pages for a week. Even old news items can be subject to a lawsuit. 

The Disinformation Law also puts social media platforms under tremendous pressure. Social media platforms such as Facebook, Twitter, etc. will be required to open branches in Turkey, submit reports on their content-labels and algorithms to the Information and Communication Technologies Authority (BTK), and share the personal information of social media users if requested by the courts. Social media platforms that fail to do so will be subject to a 90 percent bandwidth throttling, making it more difficult to access these platforms. In addition, the president of the BTK, appointed by the palace, will be able to impose an advertising ban on social media platforms for up to six months – without a court decision. Social media platforms can’t comply with all of these relevant regulations due to universal principles of law and the commercial interests of these corporations. It is precisely for this reason that the relevant article has been drafted to create a legal basis for social media companies not to comply with these rules and to be blocked in Turkey as the election date approaches. 

The new law also puts the security of personal data at great risk. Under the current regulations, an over-the-network service provider could only share user data if requested by the prosecutor’s office. However, Articles 36 and 37 of the Disinformation Act stipulate that information on all users must be regularly communicated to the BTK. Service providers must inform the BTK about the number of users, the number and duration of voice calls, the number and duration of video calls, and the number of instant messages. How many WhatsApp messages we send to whom and how many minutes we talk to whom will be automatically reported to the state without a court decision. Like social media platforms, companies that do not share this information will be blocked.

The fundamental purpose of the Disinformation Law, which is set for the June 2023 elections, does not appear to be the imposition of the sanctions stipulated in the articles. Instead, the penalties will be used to deter and intimidate the opposition, thus paralysing independent media outlets and social media platforms in the run-up to the elections and preventing individuals and the organised opposition from raising criticism.

*This article series is supported by the Consulate General of the Federal Republic of Germany in Istanbul