Recently enacted amendments to the Turkish Internet legislation; more specifically, the amendments to the Code No. 5651 entitled “Law on Regulations of Broadcasts Via Internet and Prevention of Crimes Committed Through Such Broadcasts”  is not likely to be off the public agenda soon, given it’s undemocratic and unparticipatory process of adoption as well as it’s severe implications on human rights.  Here in this article, I will focus on one aspect; the establishment of an “Association of Access Providers”.

The amended article 6/A of the code no. 5651  obliges the establishment of an “Association of Access Providers” in the pursuit of more effective enforcement of blocking decisions for the illegal content on the Internet. When established, it will be defined as a registered private entity under Turkish law, with the duty of implementing blocking access decisions, it’s membership composing of “internet service providers” and “operators providing access services”^[1]. It is important to note that, although we employ the term “association” for the sake of explanation, it is in every way a sui-generis entity in Turkish Law, which can be classified neither within the legal meaning of associations nor professional organizations.

 

The preamble of the amendments sets forward the rationale behind the establishment of the Association in following terms: “in the place of public actors, a civil initiative made up of sector representatives have been activated in the enforcement process of injunctions regarding internet content. Legislation is thus made paralel to developed country practices”^[2]. However as will be discussed below, it is neither a “civil initiative” nor an appropriate legal transplant modelled after “developed country practices”.  One of the leading examples referred by the Turkish government as a developed country practice is informally confirmed to be the Internet Watch Foundation (IWF) in the UK. Thus, my analysis of the newly envisaged association will be complemented with a comparison with the IWF practice.

 

Although the Association is reflected as a voluntary private initiative, the new legislation has made the establishment of and subscription to the Association obligatory for all access providers. It is explicitly mentioned in the provision that if the access providers fail to establish this Association within the three months time limit (starting from the enactment of amendments), administrative fines will be imposed on all access providers in the country^[3]. Paralelly, after the establishment, if an access provider fails to become a member, it will be fined^[4]. It is also clearly stipulated in the article 6/A that, being a member of this Association is a pre-condition of functioning in the sector^[5]. Whereas, both the establishment and membership is not voluntary, we can talk about a “forced association”.

Forcing persons to establish or join an association, is an infringement of both international and national human rights law, to the extend that it guarantees the freedom of association. It is widely accepted that the freedom of association additionally encompasses it’s negative; namely the right not to associate^[6]. However the compulsory aspect is not our only argument undermining the “initiative rhetoric”. Also the fact that Association’s internal regulations will be subject to Turkish Information and Communication Technologies Authority’s review^[7] further strenghtenes our counter view because both the effective exercise of  freedom of association and the accepted criteria to be named as a “civil initiative” requires a larger degree of independence from the Authorities^[8].

The new legislation designes the Turkish access providers association as an enforcement agency without margin of discretion, which shall act upon notice by the state authorities. In this manner, the Association is under the obligation to execute court orders and orders sent by the Telecommunications Authority within 4 hours. Although there is a provision making objections against blocking decisions by the Association possible, the measure will nevertheless implemented immediately and outcome of the objection will be left to the excessively long judicial processes. So here, we see that the Association is envisaged to be the hand of judiciary and executive who are competent to take the blocking decision. The Association is thus hierarchically linked to the state organs, certainly lacking the properties of a “civil initiative”.

 

When we look into the so-called inspiration; the Internet Watch Foundation, we see that it’s establishment is not based on a statuory obligation but a Memorandum of Understanding” between several private actors; namely, Internet Providers Association, London Internet Exchange and Safety Net Foundation^[9]. The state involvement in the establishment process have been more in the nature of encouragement, and consultation^[10]. Concerning the voluntariness of the membership unlike the Turkish case, it is adequate to note that there are several ISPs refusing to become members of IWF.^[11]

Another striking aspect is the Association’s envisaged sphere of activity. According to the code, the establishment of Association will serve the purpose of the “implementation of blocking access decisions that are based on legal provisions other than Article 8 of this Law^[12]”. Article 8 of the Code stipulates the process to be implemented when there is sufficient suspicion as to the existence of a list of grave offences including “sexual harassment of children”. It can thus be seen clearly that sexual abuse of children has nothing to do with the Association’s sphere of activity. This fact points towards two inconsistencies; first is between the publicization as well as the preamble of the ammendments and the existing law, second is between the practice entailed and the allegedly original role-model; the IWF.

The ammendments in their totality are portrayed by the government as a move in the struggle against the sexual abuse of children and elimination of pornography from the Internet. The government went as far as deeming those who challenge the amendments on freedom of expression grounds as “porn lobby”. However this remains mere rhetoric as the amendments did not introduce substantial changes to the legislation implemented in the cases of child abuse. Instead, the major changes were on the injunction procedures regarding the allegations of  “right to privacy”^[13]. As can be understood from the provision on exclusion, one of the most striking changes brought by the code, the Association, is not established with a view to combatting the sexual abuse of children.

A comparative approach lays the second discrepancy; that the so-called role model; IWF was established solely within the pursuit of combatting the sexual abuse of children through internet^[14]. This new Association however is  designed as an agent for the enforcement of criminal law in various other fields rather than a private initiative acting upon the unacceptability of such a grave human rights violation as the abuse of children.  As a result, this private policing actor will be obliged to take action in a wide range of activities from political crimes to the copyright infringements.

Whereas the code has envisaged such outsourcing of law enforcement functions from state to internet access providers, solely the latter will bear the costs of blocking, which is estimated to be between 3-6 million USD for each provider, depending on the customer size.^[15] While this is in itself unfair, an additional grave consequence about market dominancy is likely to follow: It is known that large operators both have the means and infrastructure to put in place the blocking measures while the small ones do not.

 

There is no indication in the code as to whether the blocking will be carried out by individual providers each or in a centralized manner, through a system established inside the Association. While this remains ambiguous, both routes will entail the dependence of small businesses and the new entrants upon the dominant providers in the market. In the absence of adequately implemented competition law as well as infrastructure sharing provisions, this is likely to result in the exclusion of small businesses from the market. From a freedom of expression perspective, it is easier for the state to put in place control and surveillance in a market with few actors, not to mention that the dominant Turkish enterprises have historically collaborated with the political power when it comes to the limitation of rights.

 

Such delegation of censorship measures from the state organs to this forced Association, will put the access providers in the place of a scapegoat in the eyes of the public. This is likely to curtail the state responsibilities and the political background of the issue. Given that according to the new system, the Association is obliged to implement the blocking decisions, most of which will not be issued by courts but the executive, access providers are left defenceless before the possible satisfaction claims arising from the illegitimacy of these orders. Last but certainly not the least, putting extra policing functions upon access providers will result in a greater internalization of the discipline by these actors, most of whom are likely to take preventive measures such as refusing to provide services in several “suspicious” contexts and to certain opposition groups. Seen from this lens, the new Association appears as a milestone in the road to a society of fear.

^[1] Article 6/A of the Code No. 5651

^[2] Article Preamble, Ammending code No. 6518

^[3] Temporary Article 3, Code No. 5651

^[4] ibid.

^[5] Article 6/A, section 10 which reads as follows: “Internet access providers who do not become a member of the Union cannot carry out operations.”

^[6] Negative right to associate has been recognised throughout the consistent case-law of the European Court of Human Rights, inter alia in the decisions: Sigurdur A. Sigurjonsson v. Iceland dated 30.06.1993, prg 35 and Sorensen and Rasmussen v. Danimarka dated 11.01.2006

^[7] Article 6/A section 4 reads as follows: “The Union shall commence operations following approval of its bylaw by Authority.”

^[8] This is expressed in “the right of associations to draw up their own rules”

^[9] https://www.iwf.org.uk/about-iwf/iwf-history

^[10] I am aware that the increasing state influence on the IWF is righteously criticized by many, especially in the context of black listing and funding. However, it’s statuory voluntariness is still an important element to mention, when compared to the situation in Turkey.

^[11] https://wiki.openrightsgroup.org/wiki/Internet_Watch_Foundation

^[12] Article 6/A

^[13] According to the new regulation, the process entailed for the allegations of right to privacy infringements are far more rapid and restrictive whereas the former process regarding the cases of child abuse is preserved to a large extent. This can be explained with the recent political athmosphere in Turkey, as an incentive to impede the scandalous dissemination of corruption data through the internet.

^[14] https://www.iwf.org.uk/about-iwf/remit-vision-and-mission

^[15] It is mentioned in the article 6/A that “All kinds of software and hardware that are necessary for the implementation of the decisions shall be obtained by the access providers” and “The income of the Union shall compose of the fees to be paid by its members.”