[AfrICANN-discuss] TURKEY PASSES NEW INTERNET CRIMES LAW

[Anne-Rachel Inné]

http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles&id=8E7D55EA-9567-4DE0-9BA8-2C9D9F92B2AE

INTERNET LAW - TURKEY PASSES NEW INTERNET CRIMES LAW
Kelly O'Connell, IBLS Editorial Department	Email

On 4 May 2007, the Turkish Parliament adopted the Turkish law No.
5651, regulating Internet content and listing crimes that can be
committed on the Web, known "Regulation of Internet Publications and
Combating Crimes Committed through such Publication." President Ahmet
Necdet Sezer signed the law on May 22nd. The first half of the law
covers criminal law matters, and the second half regulates civil law
aspects. Turkey is a country that switched from Muslim religious rule
to a secular state with laws based upon the Swiss civil code, guided
through this phase by the great reformer Ataturk. The Government is
very dependent upon the military to keep the balance between the
religious hierarchy and the secular state.
Turkey is a constitutional republic, guided by a parliamentary system
of government. The Turkish Constitution was established November 7,
1982 and its preamble establishes a separation of powers and dictates
that no rights of free speech will be allowed for thoughts or opinions
contrary to the national interests of Turkey, Turkish historical and
moral values or the principles, reforms and modernism of Ataturk. The
Government features the best established Islamic democracy, and is
based upon a secular form of government with leadership of a strong
presidency. Secularism as a permanent feature of the Constitution is
the central principle, and no interference whatsoever is tolerated by
the sacred authorities in state affairs and politics.

The following questions will be answered on the new law: What Content
does the New Law Ban?; Who is Responsible for Blocking Content on the
Turkish Net?; How are the Bans Implemented?; Why is Ataturk so
Strongly Protected by the Law?; What Has Been the Response to the News
Law?

What Content does the New Law Ban?
According to the Code in Section 8, access to websites will be blocked
if there is sufficient suspicion certain crimes are being committed on
that website. Those crimes are: (i) the encouraging of people to
commit suicide (article 84), (ii) the sexual abuse of children
(article 103) (iii) the facilitation of the abuse of drugs (article
190), (iv) the provision of dangerous substances for health care, (v)
obscenity, (vi) prostitution (article 227), (vii) gambling as well as
(viii) crimes that are regulated in the Turkish Code 5816 which
stipulates crimes against Ataturk.

Who is Responsible for Blocking Content on the Turkish Net?
Internet Service Providers are responsible to block access to bad web
content, and after blocking the content they must then show it to a
judge who rules whether the blocking should continue. The ministry of
"Telecommunication Council" must identify those responsible for the
offensive content. A formal complaint is then submitted to a
"Communication Presidency," which – much like the "Telecommunication
Council" - is another new entity created under this Act to ensure the
new law is implemented properly.

Many sites have been blocked since the law came into effect. For
example, an Istanbul court ordered the national telecommunications
company Turk Telecom to block the video-sharing site YouTube because
of a video insulting to President Ataturk was posted in which he was
depicted as homosexual. Access was restored several days later after
YouTube removed the offending video. Also, Wordpress, one of the
largest blog providers on the Internet was completely blocked as well.

How are the Bans Implemented?
A prosecuting attorney, when receiving a complaint can file an
application for a ban to block access to the website by a judge within
24 hours. If it is an emergency case, the prosecuting attorneys can
impose a ban themselves, which then have to be ratified by a judge
within 24 hours. A ban order must be decreed as quickly as possible,
followed by a blocking order and the blocking order delivered to the
Internet service provider within 24 hours following the judicial
order. If the judge does not approve, the prosecuting attorney then
must restore all access to the blocked website. If the Internet
service provider or host refuses to block access to the offending
website, the management or owners can be punished with a penalty
ranging from six months to two years imprisonment.

The Telecommunication and Transmission Presidency that is established
by this Code work under the Turkish Telecommunication Council, and can
impose bans without a judge's approval, if (i) the offending website
hosts the previously mentioned crimes and is hosted outside Turkey, or
(ii) if a website contains sexual abuse of children or obscenity and
its host reside in Turkey. This ban must then be delivered to the
Internet service provider. At this points, when the perpetrators are
identified, the Presidency will inform the prosecuting attorney in
order to start a criminal complaint against the person.

Moreover, an individual can ask for a site to be banned or blocked if
they believe their personal rights are being violated. They should
request the Internet service provider or host remove the bad content.
The ISP should publish a response to this request within seven days on
the same webpage where the offensive content was presented before. The
ISP must begin processing this request within two days of the initial
contact; if the period is exceeded, then the request is deemed
rejected. Then the person can file their case at the local Criminal
Peace Court within 15 days. This Court will then make a decision
within three days without a trial. The decision can be appealed at a
higher court. If the Court approves, the ISP or host must remove the
content and must also publish a reply to the claimant within two days.
If the ISP or host refuses to follow the ban, the owner or manager may
be punished with a sentence from six months to up to two years
imprisonment.

Why is Ataturk so Strongly Protected by the Law
President Mustafa Kemal Ataturk, the country's founder, is considered
by many Turks as the greatest statesman in their history and his work
to reform the country is seen by some historians as almost
singlehandedly creating the modern Turkish state. Since he changed the
law from religious Muslim to secular Western, an attack on Ataturk is
seen as being an assault against the entire idea of the secular
identity that Turkey has claimed. Therefore, insulting Ataturk is seen
as a kind treason, not simply the desecration of a great figure.

What Has Been the Response to the News Law?
The free speech Internet advocacy group Reporters Without Border
disagrees with the censorship found in the new law. They wrote in a
report, ""Legal restrictions now extend to the Internet. Resorting to
criminal penalties to punish Internet users is excessive. It shows the
authorities want to force website editors to censor themselves. The
possible consequences of this law are very disturbing. Will subversive
content also be banned from chat forums? How far does the government
want go to impose its control on online dissent?"