Banning/Blocking Access to Certain Websites
Av. Ali Yurtsever L.L.M
Turkey’s first foray into the Internet was back in 1993, which is when the country was first included within the global network which we now call the internet. The first years saw very limited adoption and usage due to the poor infrastructure of the country to handle large number of users and also due to the high cost of having an internet connection. Therefore, Turkey did not intervene, regulate or otherwise block any internet publications until the early 2000’s. After the early 2000’s however, the internet adoption and usage started the spread and the number of users as well as the number of publications increased dramatically. This increase in usage and publications necessitated the need for some sort of regulation within the field, which otherwise would have turned into a free-for-all where anything goes.
To prevent a lawless and limbo state within the internet, Turkey adopted a new law, the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of such Publications No. 5651 (the Law), published at the legislative journal dated May 23, 2007 and dated 26530. Following its adoption, the Law was amended numerous times in 2008, 2014 and 2015, and more recently and finally in November 24, 2016 (the latest amended was the Supreme Court’s annulment decision issued in late 2017).
II.PREVENTION OF THE VIOLATION OF PERSONAL RIGHTS AND BLOCKING OF ACCESS
The Law set forth definitions and organizational structure, catalogue crimes and the legal framework for banning websites and a few procedures. The Information and Communication Technologies Authority (BTK), which was initially established as the regulatory authority for the telecom sector, was authorized to enforce the legal framework provided by the Law. Accordingly, a division of the BTK called the Presidency of Telecommunication and Communication (TIB), which was essentially established for performing legal telephone tapping, was converted to become the authority responsible for internet related issues including enforcing all provisions of the Law.
As for the grounds for preventive measures, Article 8, 8/A, 9 and 9/A of the Law sets forth the methods and means to prevent crimes committed via internet publications and to combat rights’ violations due to such crimes. The main method and tool to combat such crimes and violations is the blocking of access to websites as per Article 8 and the removal of harmful content as per Article 9.
a) Bans/Blocks Based on Article 8
It should be noted at this point that Article 8 and 9 sets forth different criteria and lists different catalogue crimes for the purposes of access blocking and content removal. It is also important to note that for these catalogue crimes noted at Article 8, the TIB has the authority to unilaterally block/ban the specific URL or the whole website, when hosted outside of Turkey, via DNS tampering or IP blocking, without the need for a court ruling. Accordingly, Article 8 of the Law lists the following catalogue crimes as grounds for blocking of access to a website (all with reference to the relevant articles of the Turkish Penal Code No. 5237 (Penal Code):
- Incitement to suicide (Article 84)
- Sexual abuse of children (Article 103),
- Facilitation of the use of narcotics (Article 190)
- Provision of substances harmful to the health (Article 194)
- Obscenity (Article 226)
- Prostitution (Article 227)
- Facilitation of gambling (Article 228)
- Crimes against Atatürk
b) Bans/Blocks Based on Article 9
Unlike Article 8, Article 9 does not set forth an exhaustive list of catalogue crimes but rather states that in case publications made on the internet violate another person’s personal rights (such as the unauthorized usage and publication of personal details, contact numbers and e-mail address, photographs, or publications that may deemed as defamation, slander and libel, etc.), then the injured party may request the removal of such content and/or the ban of access to the specific URL or to the entire domain from the Criminal Judicature of Peace. Article 9 also allows the injured party to request the removal of the harmful content directly from the content provider or the hosting service provider, however, this is merely presented as an option and is not mandatory. Therefore, the injured party may directly request the ban/blocking of the relevant website from the Criminal Judicature of Peace (the judge).
III. METHODS OF BANS/BLOCKS
Article 2/o of the Law sets forth the different methods for the bans/blocks of access. According to this article, in case a harmful content is published in any website that violates either the provisions set forth in Article 8 or 9, the domain name, the IP address or the specific URL may be blocked. However, in order to avoid violating the right of free speech, the general rule is to only block the specific URL where the harmful content is published, and only block the domain name as a whole if the harmful content cannot be removed otherwise.
It should also be noted that, in case a complaint is filled with the Criminal Judicature of Peace as noted above, the judges may issue their rulings to ban/block the relevant websites without first hearing the defense of the content provider. Therefore, the judges are authorized to decide on the merits of the case based solely on the claims of the plaintiff, although the judges to check and verify that such claims are true and that the violate the rights set forth at Article 8 or 9 of the Law.
As noted above, the new regulations in Turkey allow for the banning/blocking of access to certain websites if the publications at such websites violate the provisions set forth at Article 8 and/or 9 of the Law. Although the provisions set forth at these article seems fair and balanced, the lack of oversight of the BTK and TIB and their respective power to shut down any website, allows for the abuse of this regulatory system, resulting in the unfair blocking/banning of numerous websites in Turkey. Such abuses aside, the regulatory system does allow for third parties to shutdown access to a specific website if their personal rights are violated, which may be deemed as a positive step towards protecting online rights. Furthermore, the response time of the courts are quite fast, especially compared to other cases in the Turkish judicial system.
The one important thing to note here is that, although not noted in any of the provisions or in any other regulation, there is a difference in blocking websites using “http” and “https” protocols. For websites using the http protocols, the BTK and TIB may directly block/ban a specific URL, without the need to ban the whole domain or the IP address. Whereas, the same cannot be done for websites using “https” protocol. Therefore, in order to block access to a harmful content published in a website using the “https” protocol, the only option is to block the domain name as a whole, which may result in the violation of the freedom of speech, since the harmful content may be restricted to a single URL link within the whole website and blocking a domain name will block access to all other URL’s that does not contain any harmful content (an example of this is the Wikipedia case in Turkey).