The problem is not disinformation, but information

The problem is not disinformation, but information
The Law on the Amendment of the Press Law and Certain Laws entered into force after its publication in the Official Gazette on 18 October 2022.  Although it is allegedly drafted with the claim of “combating disinformation”, the government's purpose behind such a regulation is to limit through censorship whatever is spoken in areas that it is difficult to control. Indeed, the justification for Article 29, titled “Publicly disseminating misleading information,” which lies at the core of the objections, complains about an “uncontrolled” expansion of information.  The actual justification for this regulation is the need for a new framework to establish whether any speech can represent what the government means by “information” or not. In this justification, we also observe a discourse of sovereignty in which the state undertakes the task of “protecting the public” against the danger of deliberate or negligent disinformation. 

The chilling effect of the existence of the law

The Venice Commission, the Council of Europe's advisory body on constitutional issues and gives recommendations on legislation in countries reported its views on the law with an “urgent” note on 7 October 2022. In its report, the Commission referred to a chilling effect arising from the law's mere existence and stated that the regulation would affect all citizens.  This is because censorship and self-censorship laws have another function other than further punishing those already speaking, making those who never talk even more speechless by showing them bigger sticks.  Fear becomes contagious with these laws. People's mobility is restricted not only online but also in off-line life; the possibilities of being a public citizen, from the right to freedom of association to the right to receive information, are challenged; the chances of people remaining anonymous accounts and receiving news in online life become impossible; the media's duty as the watchdog of the public is now forced into the position of becoming the press bureau of the political power. The law on censorship and self-censorship plays precisely these functions, doing many things without doing anything.

The law's relevance for the upcoming elections

The Venice Commission also referred to the law's relation to elections. Considering the upcoming elections in Turkey, the Commission also addressed the presence of political debate on digital platforms and the right to participate in political discussions digitally.  The Commission also highlighted that the public's right to information was not only vertical but also horizontal, i.e. users' right to be a source of news for each other in the digital world. It mentioned a horizontal news network that is not only dictated from there but also built in the public sphere. However, we know very well that a digital world in which people will be forced to disclose their identities in their anonymous accounts and where only vertical news-receiving possibilities, i.e. whatever news the government wants to be disseminated, will be transmitted to citizens, will not include any digital rights.  Since the journalists have been the ones who have reacted most earnestly to the amendment, there is a widespread misconception that the amendment targets only journalists. However, journalists have already been under restraint for years. Of course, press organisations and journalists are being restricted in their ability to report news, and censorship and oppression are increased to an unprecedented extent. However, not only journalists and press organisations but also activists, rights defenders, politicians, opponents, and civil society are also showing, not only with the disinformation article but with all of the articles, how public life will be further scaled back, how the state will systematise this, and how vertical hierarchies will be envisaged between us and news and information.

Control of information and state-led disinformation

Studies in political science and communication describe the main difference between the authoritarian/totalitarian leaders of yesterday and those of modern times: “While the former relies more on violence to rule, the latter relies on the manipulation of information by controlling communication.” Authoritarian/totalitarian leaders survive in modern times by manipulating the information environment provided by the state. Elections are evidently won through manipulation, censorship or increased oppression and violence coordinated by a group of well-informed elites around the leader.  During the forest fires in the Aegean region last year, President Recep Tayyip Erdoğan mentioned an amendment to the law on disinformation in response to the public reaction against the difference between the information provided by official institutions and those provided by journalists in the field. In Erdoğan's words, the information disseminated to the public by the “virus media” contradicted the information provided by the government, and the ruling power had difficulty preventing this information.  However, Turkey has an issue of information rather than disinformation. The official institutions of the state are not transparent in sharing information. While the government turned the mainstream media into a rose garden without thorns for itself, it prevented questioning whether the information it serves is “disinformation” or not. Why are journalists so eager to spread the news served by the ruler without question? Are they so blind to the facts? Don't they have any ethical concerns? Haven't they ever read their professional rules? Have they never been told that “truth” is the basis of journalism? Do they not know that the priority of journalism is “public interest”? Have they forgotten that their duty is to report “accurate information”? Don't they know that the news should be written with all their elements? They do, but they are fans rather than journalists committed to ethical values.  A journalist is obviously partial but in favour of peace, in favour of the powerless. The mistake is to side with the “powerful.” Therefore, not only politicians are responsible for disinformation but also journalists in the mainstream media who simply report what is written without questioning it. No matter how much the government suppressed the press through the judiciary and laws, it could not completely block access to alternative media and their social media accounts. 

The controversial Article 29

One of the most controversial articles of the censorship law is the offence of “publicly disseminating misleading information”, which was included in Article 217 of the Turkish Penal Code. The article reads as follows:
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.
There is only one answer to the question of what is included in the definition of the offence of “disseminating false information that may cause concern among the public”: What doesn't? Such a definition has neither the foreseeability nor the certainty required by a criminal law article. Which information will be considered accurate or misleading, and by which criteria? Let's remember the debate on vaccination; from now on, any criticism of professional organisations against the government can be investigated within this scope. Those who express opinions contrary to the official view of the state on almost any issue, from nuclear power plants to zoning, from corruption and unsolved murders to acts of violence, from radical organisations to child abuse by sects and communities, may face imprisonment. 

Life will get more complicated for journalists

Life will become slightly more difficult for journalists who want to write accurate and ethical news, but journalists who insist on writing the truth instead of disinformation are already facing the risk of oppression, violence and arrest at any moment. They are taking all these risks and are ready for the consequences. We can say that prosecutors will now assume the role of “editor-in-chief” with the new law. A prosecutor who is offended by a news item may initiate an investigation with the allegation of “disseminating misleading information to the public”, but we do not know which news item will be considered accurate or misleading by the prosecutor and by using which criteria, we can only speculate: Can the judiciary make a decision independent of politics? Especially in the last ten years, have there been any journalist cases in which the judiciary made a decision independent of politics? We cannot recall an exemplary judgment when we refresh our memory. According to the law, for instance, in case of an explosion in a building, if the first official who arrives at the scene says that the explosion was the result of natural gas, the journalist must accept this statement as true and report the news as “the explosion was caused by natural gas.” Then, of course, the official's statement is quoted, but question marks in the incident are also waiting to be answered. Therefore, the journalist starts the research process and shares it with the public after confirming the elements that emerge as question marks. Official institutions are, of course, continuing their investigations into the explosion. Likewise, law enforcement officers have concluded that the explosion “could have been caused by a bomb.” However, suppose the journalist shares their findings with the public before the official announcement of the state. In that case, they may face the accusation of “spreading misleading information to the public.” This is precisely what it means to render the journalism profession dysfunctional and create a climate of anxiety and fear among our colleagues. 

A journalist will be prosecuted if they do not disclose the source

The law is now in force.  Journalists will now spend more time outside the doors of press prosecutors than in the field. With the law, the offence of “publicly disseminating a document contrary to the truth” has been criminalised. A journalist does not disclose the news source, no matter the consequences. This is an ethical and universal rule. If they do not reveal the source of the news, the authenticity of the news will be questioned, and the journalist will be subjected to heavy penal sanctions.  However, journalists in Turkey have been compelled to disclose their news sources in court cases in almost every government period. The first thing taught in news centres is that keeping the source confidential is the “honour of journalism.”  We have taken over this profession from Nazım Hikmet, Sabahattin Ali, Yaşar Kemal, Abdi İpekçi, Uğur Mumcu and Metin Göktepe. Repression, detention and economic difficulties have never frightened journalists who trace the truth. Yet, despite all the challenges, we have never stepped back from our determination to continue our journalism in the footsteps of our colleagues who paid the price.   Journalists must insist on the accuracy of their news from now on, together with data, experts and evidence. Because it will eventually be found that the journalist is telling the truth, our greatest hope is that society will not surrender to the climate of fear and oppression. It is helpful to remember the following quote by American journalist and writer Walter Lipmann every day: ”There can be no higher law in journalism than to tell the truth and to shame the devil.” *This article series is supported by the Consulate General of the Federal Republic of Germany in Istanbul

Medya ve Hukuk Çalışmaları Derneği (MLSA) haber alma hakkı, ifade özgürlüğü ve basın özgürlüğü alanlarında faaliyet yürüten bir sivil toplum kuruluşudur. Derneğimiz başta gazeteciler olmak üzere mesleki faaliyetleri sebebiyle yargılanan kişilere hukuki destek vermektedir.