Turkey’s top court has partially annulled a law tightening state authority over the internet and expanding the powers of the country’s telecommunications authority.
In its verdict this month, Turkey’s Constitutional Court said the Telecommunications Directorate’s (TIB) power to close websites without a court order was “unconstitutional”. A regulation passed by parliament in February authorised the TIB to close down websites without a prior court order on the basis of national security, protecting public order or preventing crime.
The court also overturned a part of the law authorising service providers to store users’ data and provide authorities with that data on demand.
The legislation sparked street protests and various public campaigns against the new online controls earlier this year. The swift adoption of the law in February came after the online leak of phone recordings in late 2013 and early 2014 that allegedly documented corruption in state tenders and bribery involving businessmen and Turkish government members. At that time, Twitter and YouTube were blocked through court orders. The European Union, the Council of Europe and the United Nations expressed concern over the legislation, along with rights groups such as Human Rights Watch and Amnesty International.
Riza Turmen, a former European Court of Human Rights (ECHR) judge and an MP of the Republican People’s Party (CHP), spoke with Al Jazeera about the recent verdict.
Al Jazeera: Why did the Constitutional Court make such a decision? What is the background of this law?
Riza Turmen: In 2012, the European Court of Human Rights made a judgment on Article 8 of the law No.5651 [the original 2007 law regulating the internet in Turkey]. The court decided that freedom of expression was breached by this law as it did not have assurances to avoid arbitrary blocking of internet access.
[Turkey is a member of the Council of Europe, and ECHR verdicts are binding for member states.] As a result, the government had to make changes on the law in line with this verdict and create clearer assurances for freedom of expression.
The government moved in the opposite way, making it more restrictive by giving TIB the authority to block websites without court order and by forcing internet providers to collect personal data.
This happened after recordings on alleged government corruption were leaked on the internet.
According to the law, which has a very vague language, the TIB can block websites within four hours without a court order. The institution has to go to court [within] 24 hours pursuing an order to keep the site in question blocked and the court shall come to a decision in 48 hours. This means that websites can arbitrarily be blocked for around four days.
The storage of data by internet providers is the second unconstitutional aspect of the law.
Al Jazeera: Human rights groups and international organisations criticised how the internet was regulated in Turkey and the court orders in this area even before the latest changes passed in February. What is going to happen now? Are the same dynamics going to continue?
Turmen: We need to wait for the Constitutional Court’s reasoned judgment, in which it is going to explain the grounds for its decision. Therefore, at this point, there is no precise answer to the question, ‘What is going to happen next?’
The verdict is going to come into force after the reasoned judgment is published in the Official Gazette.
The government then can come up with new changes to the law, as it is not possible for it to stay this way, given the ECHR verdict of 2012. The reasoned verdict of the Constitutional Court should also be a guide for the changes.
In addition, there are reports by rights groups and international organisations, pointing out the deficiencies in the law.
All these should guide the government.
Al Jazeera: Do you think the TIB has used its authority to block websites in an objective way and in line with the public interest as it is mandated by the law?
Turmen: An online article by Ezgi Basaran, a Turkish columnist, has recently been blocked by the TIB. The column listed several actions taken by the rector of a university against students and lecturers who attended protests.
This is a good example showing how arbitrarily the power is being used.
Al Jazeera: In the beginning of this year, YouTube and Twitter were blocked when illegal phone recordings, which allegedly document corruption by government officials, were leaked on the internet. Does the fact that the recordings were illegal justify blocking of these websites?
Turmen: Recordings made without court order are illegal and cannot be used as evidence at court even if they reveal a crime. However, if a recording, which concerns public interest, has already become public, there is nothing wrong with spreading it on the internet or through media. Making the recording and spreading or sharing it are two different things. The latter is a matter of freedom of expression. The ECHR has verdicts ensuring this.
Al Jazeera: High-level Turkish officials often make statements targeting the internet. Recently, President Recep Tayyip Erdogan reportedly said, “I am increasingly against the internet every day.” How are these statements seen by the international community?
Turmen: The government should understand this: Internet freedom is a part of freedom of expression. You can limit it as much as you can limit the freedom of expression.
According to the ECHR verdicts, freedom of expression can be restricted only in cases of promotion of violence, hate speech or insult. The same rule applies to internet freedom.
Accordingly, it is not in line with international norms for the government to restrict access to the internet through TIB because some websites share messages it does not like.
Being against the internet means being against the freedom of expression.
Follow Umut Uras on Twitter: @Um_Uras