Based on the definition of the Act, content should be understood as every information and data available on the internet, while a content provider refers to legal or real persons who produce, modify, or provide every information and data presented via the internet. Content moderation is “the screening, evaluation, categorisation, approval or removal/hiding of online content” to be compatible with public and private policies. Publishing content on the internet has become widespread due to its convenient, accessible, and cost-free nature and freedom of speech earned a new dimension after the expansion of the internet and people turned into active content providers. As a consequence, regulators took steps to protect societies from unlawful and detrimental content and made it possible for some authorities to moderate content.
On May 4, 2007, Türkiye enacted the Act on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts No. 5651. The act is also known as the Internet Act or Social Media Act because of its comprehensive approach to content moderation. It is not the only act granting the right to moderation to public institutions and individuals. There are exclusive articles in different Turkish Law regulations. In this article, I will analyse related articles of the Internet Act and the limits of the right to moderation granted to public institutions and individuals.
1. The Act on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts No. 5651
Despite its comprehensive approach, Law No. 5651 is one of the most debated regulations in Türkiye regarding content moderation. Its multiple articles grant moderation rights to different public institutions and individuals, such as the President of Information Technology and Communication Authority (‘ITCA’), Access Providers Association, and the President of the Republic, etc.
i. Article 6
Access Providers Association is an association of access providers, and it is mandatory for access providers to be members of it. One of their obligations is to take measures for alternative access ways to the content that has already been decided to block access. It is ambiguous what lawmakers mean by alternative ways to access. If they mean the blocked content to be published by others, then it grants the right to block access to content by an administrative institution that is not reviewed or approved by any judicial authority. In this case, the association’s position is not different from the courts under this Act. Also, there is no right to appeal for individuals who are affected by the Association’s decision.
ii. Article 8
If there is sufficient suspicion about the content constituting the crimes listed in the article, authorised people can decide to remove content or block access.
Authorised people are explained as judges in the investigation stage, and the court in the prosecution stage decides on the removal or access blocking. In a non-deferrable case during investigation, the public prosecutor is also authorised to decide on removal or access blocking. If so, the public prosecutor submits the decision to the judge within 24 hours, and the judge may approve it within 24 hours. If it is not approved, the public prosecutor removes the decision immediately. Decisions by these authorities are sent to ITCA for further action. The paragraph does not indicate when to choose removal or access blocking, and it is left to the judges and courts’ discretion. Decisions perform as protective measures, and so they can be appealed according to the Code of Criminal Procedure No. 5271, dated 4/12/2004. However, considering the workload of courts and possible damages individuals may suffer, lawmakers must provide a clear explanation of choosing the remedy instead of facing the consequences after the decisions are made.
According to paragraph four, the President of ITCA shall decide ex officio to block accession to publications constituting crimes listed in the first paragraph. Decisions of the president are not submitted to the judge, and there are no means to appeal by the involved individuals. According to Article 40 of the Constitution of the Republic of Türkiye, “everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities.” While the right to appeal is provided under the second paragraph, the lack of it under paragraph four is a clear void and in contradiction to the Constitution.
Access blocking decisions given upon this article are executed on the publications, sections, or parts of violation (URL, etc.). If this is not technically possible or a violation cannot be prevented in this way, blocking access to the whole website is possible. So, it is necessary for authorities to indicate the most specific URL address of the content while requesting access blocking. There are judgments revoking access blocking decisions upon appeal because decisions do not fulfill this requirement. However, as seen in the judgments, this requirement is not strictly controlled by authorities responsible for access blocking decisions, and access to whole websites are blocked unlawfully. In the Ahmet Yıldırım v. Turkey, a 2012 case, the European Court of Human Rights found the article’s judicial review procedure insufficient for avoiding abuse and claimed that the “domestic law does not provide for any safeguards to ensure that a blocking order in respect of a specific site is not used as a means of blocking access in general.”
iii. Article 8/A
Article 8/A authorizes the President of the Republic and the President of ITCA, upon request of related Ministries, to remove content or block access. The President of the Republic is authorized if there are non-deferrable cases related to: the protection of the right to life, protection of individuals’ lives and properties, national security and preservation of public order, prevention of committing crimes, or protection of general health. The President of ITCA is authorized if related Ministries request removal or access blocking of content in cases of national security and preservation of public order, prevention of committing crimes, or protection of general health. Decisions given upon this paragraph are sent to a criminal peace judge for approval within 24 hours. The judge provides a decision in 48 hours, and if not, the decision becomes invalid automatically.
Providing the most specific URL of the content for access blocking decisions is required for decisions taken upon Article 8/A, too. However, the lack of inspection becomes a broader issue in this article because the illegality grounds are more abstract and more general. It creates a broad discretion for administrative bodies and enables the exploitation of moderation authority, leading to the restriction of freedom of expression.
In one of its individual application verdicts, the Constitutional Court of Türkiye claimed the article lacks necessary precautions to protect freedom of speech because the procedure under article 8/A and 9/A for blocking access does not require criminal or civil proceedings, and no right to appeal. Despite the article listing similar restricting reasons with other international rulings, it does not provide three other requirements: necessity in a democratic society, which means responding to an urgent public need, relevance and sufficiency, and proportionality. The court also criticizes the article as it lacks the definition of non-deferrable cases and emphasizes there is no clear reason why the article authorizes the President of the Republic and Ministries instead of a criminal peace judge if there is a criminal emergency case.
iv. Article 9/A
Article 9/A authorizes individuals whose right to privacy is violated by online content. These individuals may directly apply to ITCA and request blocking access to the content at issue. In the application, it is mandatory to provide the direct URL address of the content. In non-deferrable cases, the President of ITCA is authorized to request blocking access to content violating someone’s right to privacy. In both cases, it is mandatory to send the decisions for approval of the criminal peace judge within 24 hours after the request. The judge submits the decision in 48 hours; if not, then the access blocking becomes invalid automatically. The President of the ITCA has the right to appeal against the judge’s decisions, but this right is not granted to individuals who are the main subject of the violation. In this regard, it is questionable if the article is in alignment with Article 40 of the Turkish Constitution.
2. More Moderation Laws in Turkish Law
In 2018, Article 29/A was added to The Act on the Establishment of Radio and Television Enterprises and Their Media Services Law No. 6112, authorizing the Radio and Television Supreme Council regarding content moderation. According to the article, if the Supreme Council determines that an individual or organization is broadcasting online without a valid license or after their license was revoked, a Court Decision shall be taken by the Judge of the Criminal Court of Peace on the removal of the content and/or prevention of the access to the content related to the online broadcast in question.
Broadcasting services wishing to transmit their services online shall get a broadcasting license in alignment with the Regulation on the Presentation of Radio, Television, and On-Demand Broadcasting on the Internet. This rule includes platforms and media service providers based abroad if they wish to broadcast in Turkey. So, to obtain the broadcasting license for the internet, these overseas-based enterprises should establish an incorporated company under the Turkish Commercial Code. Moreover, to obtain the license, enterprises are obliged to pay a broadcasting license fee and 5/1000 of their annual income provided by subscribers or users. These financial requirements hinder the improvement of freedom of speech and pave the way for monopolies in the media sector.
According to the article, services broadcasting via the internet are under the supervision of the Radio and Television Supreme Council. Radios and televisions do not offer the freedom of internet broadcasts because they have timetables, making it impossible for the audience to choose what to watch. On the contrary, internet broadcasts are individuals’ choice, and it is not accessible to every person, unlike radio and television. Subjecting them to the same law as radio and television violates the freedom of their audience. In the Türkiye Report 2020, the European Commission criticized the regulation and the authority of the Radio and Television Supreme Council on internet broadcasts, emphasizing their concerns about the independence of the council. Council made decisions to prohibit broadcasting news related to Covid-19, terror attacks, divorces, child abuse, and many others, and the sanctions they applied have been at an alarming rate regarding freedom of speech and freedom of the press, according to the Commission. The commission also found the regulation ambiguous regarding the scope and definitions, and restrictive regarding access blocking. The Radio and Television Supreme Council has discretion in defining obscenity, general morals, and national unity. They indicated that the regulation aims for comprehensive surveillance and censorship. European Union countries have similar institutions, such as AGCOM in Italy, CSA in France, and DLM in Germany. These institutions have similar powers to the Radio and Television Supreme Council, but the Supreme Council’s heavy sanctions, doubtful independence, and the ambiguous nature of the regulations are why the European Commission finds the regulation worrying and restrictive.
Conclusion
As seen above, it is not possible to claim that content moderation on the internet complies with other binding sources and is compatible with the requirements of the ECHR under Turkish Law. Regulations regarding product safety, illegal gambling, or misinformation about health are easier for governments to provide a concrete frame for their illegality. However, when the ground of legality is an intangible concept like public order, national security, right to privacy, etc., the restrictions are open to exploitation by people in charge. ECtHR verdicts and the Constitutional Court of Türkiye shows content moderation laws in Türkiye do not provide necessary mechanisms to limit the power of authorized parties and means to remedy. Lawmakers need to consider the opinions of highly prominent courts and make changes to meet the standards of an ideal democratic society, not only to protect democracy but also to reflect the views of other democratic societies regarding Türkiye.
