Burçak Ünsal
The Constitutional Court of Turkey annulled two provisions in the omnibus bill enacted on 11 September 2014, amending among others the so-called Internet Law.
Let me give my conclusive statement at the very beginning: these annulments are insufficient and the Internet Law is still loaded with many provisions which cannot answer the needs of contemporary Turkey and that obstruct Turkey from attaining the goals established by the government for 2023, the 100th anniversary of the Republic.
Media, academicians and the general public generally focus on the issues which have already become popular magazine topics such as YouTube and Twitter bans. However, even a school child knows how to easily avert such bans at zero cost.
The real problem and the bitter truth which is most ignored is the excess of power to undermine the judiciary and providing juridical immunity to government officials.
Although we have candidly shared our opinions on the Internet Law since the day it was enacted back in 2007, the government chose to amend it three times in the last six months totally contrary to what it should have been. Most recently it was amended by an omnibus bill, in September and it was the first piece of legislation approved by Tayyip Erdoğan in his capacity as president.
Most of the amendments introduced in the Internet Law are against the Turkish Constitution, as well as a December 2012 ruling of the European Court of Human Rights condemning Turkey due to the coarse Internet Law, which it found inadequate to be even considered law.
The Constitutional Court has annulled the following provisions in the omnibus law:
- Banning a web site by the regulatory authority at its own discretion due to its perception of national security, public order or prevention of crime without a court order.
- Collection of individuals’ Internet traffic data by the regulatory authority.
What this decision will bring is that
- The regulatory authority will not be able ban any web site at its own discretion without a court order, nor will it be able to collect any traffic data of individuals.
Sounds good! But, is it enough to bring Turkey to where it should have already been? Not even close!
Turkey and her Internet Law are still far far away from what could make Turkey achieve its ambitions in the 100th anniversary of the Republic in 2023, set by the government, because;
- The Internet Law provides juridical immunity to the chairman and the personnel of the regulatory authority, just as the chairman and the personnel of the Turkish intelligence agency obtained back in 2012. Now, the chairman of the regulatory authority cannot be put on trial unless the relevant minister allows. This is an explicit violation of one of the pillars of the rule of law mandating that the administration shall answer to independent courts for its wrongdoings.
- The courts which shall review content removal would be determined by the Supreme Council of Judges and Prosecutors. However, this does not comply with the need to establish specialized courts. It takes a lot of effort and years to establish specialized courts which will hear content removal cases and crimes committed on the Internet.
- The chairman of the regulatory authority is entitled to remove content or ban a web site at his/her own discretion based on his/her own moral values, without a court order, if he/she believes that the content violates personal rights.
- A judge may ban an entire web site or an Internet service (as Twitter or YouTube), if the judge believes that banning/removing a specific URL (such as a specific video or a tweet) would not be sufficient to fulfill the objective of the court order.
- “Notice-and-Take-down” has been entirely set aside by allowing anyone who claims that her privacy has been violated to directly apply to the regulatory authority for content removal, by-passing the courts, the person who posted the content and the platform where the content was posted (such as Twitter, YouTube, Blogger and etc.). Upon such individual content removal application, the regulatory authority simply orders the access provider to comply with the removal demand.