With the enactment of Law No. 5651 in May 2007, Turkey has become the land of internet censorship, argues Dr Yaman Akdeniz

In January 2010, an OSCE report on internet censorship documented that 3,700 internet websites were blocked in Turkey. As of February 2011, that number is estimated to be around 10,000.

Although the infamous YouTube ban has miraculously ceased, the two and half year ban triggered three different applications to the European Court of Human Rights, all alleging infringement of freedom of expression under Article 10 of the European Convention on Human Rights.

Two further applications about blocked access to Google Sites and Last.fm are currently pending at the Strasbourg Court. Meanwhile, the Turkish courts, and the Telecommunications Communication Presidency (TIB), an administrative body created by Law No. 5651 (entitled “Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication”) continue to issue blocking orders.

There is no access to several well-known international websites, including playboy.com, vimeo.com, ffffound.com, and the popular blogging service Blogspot was shut off during the last few months. At the same time Professor Richard Dawkins’s website (richarddawkins.net) has been blocked since September 2008 while a related defamation case slowly progresses through the Turkish civil law court.

The most publicised of the blocked sites include Sanalika.com, a Turkish virtual world and playground;  Azadiyawelat.com, the website of a Kurdish newspaper; Fizy.com, a popular music and video sharing Turkish website which won an award for best music search engine at the 2010 Mashable Awards; and 5Posta.org, a popular blog which contains articles about sexuality, sexual politics, and internet censorship.

Legal challenges

While the number of blocked websites continues to grow, legal challenges to blocking orders have also begun; for example, involving the political website (http://bugunkilicdaroglu.com) which was set up to assess the policies and strategies of Kemal Kılıçdaroğlu, the leader of CHP, the main Turkish opposition party.

The name of this particular blog-style site stands for “Today Kılıçdaroğlu”. The website was immediately noticed by CHP and Kılıçdaroğlu’s lawyers when it was launched in September 2010. Between 17 September and 01 October 2010, the site’s owner Timur Manisali wrote 12 articles on his website.

That was enough criticism for the CHP leader and his lawyers obtained an injunction to block access to the website. Manisali used his website to announce one of the lawyer’s blocking order, along with a farewell article criticising the censorious action.

The blocking order, issued by the Ankara 3rd Criminal Court of Peace, was not communicated directly to Timur Manisali, nor was he given the chance to defend himself. Furthermore, the judgment was unclear because it did not specify the reason for the decision.

In November 2010, Manisali was contacted by Cyber-Rights.Org.TR, a non-profit organisation that offers pro-bono legal assistance to victims of internet censorship in Turkey. A defence team was immediately set up, and an appeal was lodged on 3 December 2010 to overturn the blocking decision with an appellate court, the Ankara 11th Criminal Court of First Instance.

It was argued by the defence that order should be nullified as the issuing court did not have the authority to block access to the website in the first place under Article 9 of Law No. 5651.

It should be pointed out that Article 9 of Law No. 5651 provides a new procedure for internet content in violation of personal rights: the individual alleging that their rights have been infringed by a website is encouraged to seek the removal of the content from the website, but not the blocking of the website carrying the allegedly illegal content.

Article 9 does not contain any provisions on “blocking” and private law matters can only result in “removal” (take down of the particular infringing article), together with the publication of an apology if a Court deems it necessary. Therefore, since 23 May 2007 when the Article 9 provisions came into effect, the courts are no longer empowered to issue blocking orders with regards to private law matters, including for claims of defamation and other personal rights.

The defence in the http://bugunkilicdaroglu.com case pointed this fundamental irregularity to the appellate court. Furthermore, it was argued that the writings of Timur Manisali should be regarded as political speech and therefore, should be protected rather than censored.

The defence argued that there was no defamation on the website, and despite the claims of Mr. Kılıçdaroğlu’s lawyers to the contrary the website did not need any permission to use Mr. Kılıçdaroğlu’s name or photo on the website, or to use his name on the website’s domain name.

Mr. Kılıçdaroğlu is a well-known political figure and as the European Court of Human Rights has stated many times, the limits of permissible criticism are wider with regards to government officials and politicians. In a democratic system the actions or omissions of a politician, in this case the leader of the main Turkish opposition party, must be subject to close scrutiny.

According to the Committee of Ministers of the Council of Europe: “political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate, and are therefore subject to close public scrutiny and potentially robust and strong public criticism through the media over the way in which they have carried out or carry out their functions”.

As to the limits of acceptable criticism, the Strasbourg Court established in Oberschlick v. Austria (no. 2) (judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV) that:

“they are wider with regards to a politician acting in his public capacity than in relation to a private individual. A politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism. [Mr. Kılıçdaroğlu] is certainly entitled to have his reputation protected, even when he is not acting in his private capacity; but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly. “

On 6 January 2011 the Ankara 11th Criminal Court of First Instance overturned the decision of the Ankara 3rd Criminal Court of Peace by lifting the injunction which resulted in the blocking of http://www.bugunkilicdaroglu.com.

The Court accepted the objections raised by the defence team, stating that Mr. Kılıçdaroğlu’s lawyers did not specify their objections with the website in their petition, and further, the complainants can only request the removal of specific content subject to Article 9.

It found that, in any case, the courts cannot issue blocking orders by relying on Article 9. Therefore, according to the Court the blocking order issued by the Ankara 3rd Criminal Court of Peace was illegal.

The unjustified political censorship of Timur Manisali’s website lasted nearly three and a half months. His website is now back online. In a press release he said that his criticism of Mr Kılıçdaroğlu does not exceed the limits of political discourse, and the attempt to limit his freedom of expression was unacceptable.

According to Manisali, rather than spending time to block access to his website, Kemal Kılıçdaroğlu and his political party should criticise the Turkish government’s internet censorship policy.

Undoubtedly the internet censorship saga will continue in Turkey, but there is some hope as the website owners are starting to fight back through these legal channels.

Dr Yaman Akdeniz is Associate Professor, Faculty of Law, Istanbul Bilgi University, and Director of Cyber-Rights.Org