European Union Regulations on Disinformation and Turkey's Approach
In recent years, with the widespread use of the internet and people's access to information via the internet and especially social media, a concept of “disinformation” has emerged in recent years. Disinformation basically means deliberately spreading false information to influence public opinion or hide the truth. Disinformation contains false or inaccurate information and is intended for manipulation. The most important purpose here is to mobilize the masses and create chaos. In disinformation, false information is not only spread by individuals or organizations, but it has also become a method frequently used by newspapers and news channels. Here, it is necessary to mention the concept of “misinformation”, which is the most confusing concept with disinformation. In misinformation, false information spreads like disinformation but the spread of false information is not done intentionally. To summarize; in misinformation, the spread of false information is not done intentionally, but in disinformation, false information is deliberately spread and used in a propagative way. Therefore, it has become necessary to make some arrangements to combat disinformation. In this article, the regulations made in the European Union and lastly Turkey's approach will be examined.
2. European Union and History of Regulations Regarding to the Disinformation
The fact that information is easy to access through social media platforms and that information can spread quickly over social media platforms has led the European Union (“EU”) to initiate the process of combating disinformation and to control the information shared on social media. Important steps have been taken in the EU to deal with the increasing disinformation problem, especially with the COVID-19 pandemic. As known, freedom of expression and information regulated in Article 11.1 of the European Union Charter of Fundamental Rights (2000/C 364/01) and the freedom of expression in Article 10 of the European Convention on Human Rights. Attaching great importance to freedom of expression with these regulations, the EU adopts a balancing approach in the fight against disinformation. Accordingly, rather than criminalizing or prohibiting disinformation as such, the EU strategy aims to make a more transparent online environment.
The EU Action Plan Against Disinformation and Code of Practice on Disinformation (“Code of Practice”) were adopted by the European Commission in 2018 for the initiative to combat disinformation to have a legal basis. The Code of Practice on Disinformation is the first time worldwide that industry has agreed, on a voluntary basis, to self-regulatory standards to fight disinformation. In this context, agreements have been signed by social media platforms, such as Facebook, Google, and Twitter, as well as by the advertising industry in October 2018. Also, Microsoft was signed the Code of Practice in May 2019 and then TikTok was signed in June 2020. The agreement, in which social media platforms and the advertising industry have signed on to self-regulating standards for the first time, covers issues of transparency in political advertising, closing fake accounts or finding disinformation providers. It also includes reporting monthly basis on their actions to improve scrutiny of ad placements, ensure transparency of ads with political content, and tackle fake accounts and malicious use of bots. Also, a Rapid Alert System among the EU institutions and the EU Member States with the aim of sharing data and assessments of disinformation campaigns was launched on 18 March 2019. However, despite the companies accepting their responsibilities for disinformation, it was seen that intense disinformation campaigns were organized and spread through social media in the last presidential elections in the USA and the Brexit referendum in the UK. In addition, with the emergence of the COVID-19 pandemic, the rapid spread of disinformation towards the EU via social media platforms has demonstrated the inadequacy of agreements with social media platforms and the advertising industry. On May 26, 2021, the European Commission has published its Guidance on Strengthening the Code of Practice on Disinformation (“Guidance”) document, to address the Commission’s views on gaps and shortcomings in the Code of Practice on Disinformation. The aim of the Guidance is to show how the Code of Disinformation could be strengthened to become a more effective tool for countering disinformation.
The Guidance calls for reinforcing the Code of Disinformation by strengthening it in the following areas;
- expansion of the scope and larger participation with tailored commitments,
- better demonetizing of disinformation,
- ensure the integrity of services,
- empower users to understand and flag disinformation,
- increase the coverage of fact-checking and providing increased access to data to researchers,
- a robust monitoring framework,
- develop a Transparency Centre,
- cooperate with the EU Rapid Alert System.
In addition, on October 1, 2021, the Commission called all other interested parties that can contribute to the strengthened Code of Disinformation and willing to take on commitments related to their services to manifest their interest to become signatories of the strengthened Code of Disinformation and join the drafting process. Following this call, eight new prospective signatories, Vimeo, Clubhouse, DoubleVerify Avaaz, Globsec, Logically, NewsGuard, and WhoTargetsMe, joined the revision process of the Code of Practice on disinformation.
Meanwhile, on December 15,2020, the Digital Services Act (“DSA”), which is a legislative proposal by the European Commission to modernize the e-Commerce Directive on illegal content, transparent advertising and disinformation, has been proposed and on on January 20, 2021, the Parliament adopted the proposal with 530 votes to 78 against, with 80 abstentions. With the DSA, a supervised risk-based approach will oblige very large platforms to assess and mitigate the risks their systems pose, including for protecting fundamental rights, public interests, public health, and security, and to subject their assessments and measures to independent audit. When we look at the penal sanctions of the legislative proposals, we see that DSA can impose fines of up to 6% of their annual income on companies for breaches of the Regulation regarding supply of incorrect, incomplete or misleading information in the context of the investigation.
3. Turkey's Approach Regarding Disinformation
The most comprehensive regulation regarding the Internet in Turkey was made in 2007 with the Law No. 5651 on Regulation of Broadcasts Via Internet and Prevention of Crimes Committed Through Such Broadcasts (“Law No. 5651”). For the first time with the Law No. 5651;
- Internet actors (like content provider, social network provider, access provider) have been defined and the rights and responsibilities of these actors have been determined.
- The procedures and principles of preventing access in terms of crimes are regulated.
- The procedures and principles for ensuring the removal of content from publication and applying the right of reply regarding the persons who claim that their rights have been violated due to the content published on the Internet have been included.
- A filtering method is envisaged within the scope of content that constitutes a crime (and/or is harmful to minors).
- An internet information reporting center (ihbarweb.org.tr) has been established in Turkey, where complaints can be made regarding the catalog crimes listed in the Law No. 5651.
In this regard, the Law No. 5651 regulates content removal/access blocking for the contents broadcasted on the internet, if this content;
- constitutes one of the catalogue crimes listed (provocation for committing suicide, sexual abuse of children, to ease the usage of drugs and stimulants, supplying drugs which are dangerous for health, obscenity, prostitution, to provide place and opportunity for gambling, crimes mentioned in the Law on Crimes against Atatürk, crimes mentioned in the Law on Organization of Games of Chance and Bet in Football and Other Sports Competitions),
- results in non-delayable cases due to the content being threatening to right to life and protection of security of life and property, protection of national security and public order, prevention of commission of crimes or protection of public health,
- violates of personal rights,
- violates right to privacy of personal life.
However, arguing that social media companies did not comply with these decisions, the government made a change in the Law No. 5651 in July 2020. With this change, the obligation for social media platforms to have representatives in Turkey was introduced to the Law No. 5651. Moreover, with the amendment, the social network providers (natural persons or legal entities that enable users to create, display or share content such as texts, image, voice, location, over the internet for purposes of social interaction) with more than one million daily access from Turkey are made obliged to respond to applications made by individuals regarding contents within the scope of violation of personal rights and right to privacy of personal life within no later than 48 hours upon application, either positively or negatively.
Accordingly, while it was possible to remove the content or block access to it if the content creating disinformation falls under one of the violations described above and disinformation could be combated with the existing regime to certain extent, it is known that the government is not satisfied with the practice and is of the opinion that the Law No. 5651 is not sufficient to combat disinformation.
The statements made by President Erdogan shed light on the regulation of a new social media law for Turkey. In this context, the ruling Justice and Development Party (“AKP”) has started to work on legal regulation that includes sanctions against both social media providers and users, on the grounds of "fighting fake news and disinformation". AKP officials argue that disinformation aiming to create chaos in society also constitutes a “form of terror” and accordingly, emphasize that this fact will be addressed with the regulation. Hereby, AKP gave an official start to the works to be carried out in this regard and held its first meeting on September 1, 2021. The senior officials from the Ministry of Interior, Ministry of Justice, Ministry of Transportation, and Infrastructure, as well as the Communication Director of the Presidency, Deputy Chairman of AKP Group, the Heads of Justice and Digital Mediums Commissions of the Parliament participated to this meeting.
One of the most critical points of AKP's new social media regulation is which authority will decide whether a post is for disinformation purposes and what its criteria will be. In this regard, it is stated that an "official and institutional" mechanism will be established like “Social Media Presidency” for the control of disinformation content, while this idea said to be abandoned to dismiss censorship claims. In case of disinformation content sharing is “organized, and for a certain purpose”, several sanctions, including the removal of content, administrative/judicial fines, and even imprisonment for social media users who share disinformation and not using social media for up to 1 year, to be imposed.
While these developments were taking place on the government side, on February 4, 2022, the Nationalist Movement Party (MHP) – an ally of AKP – presented a bill (“Bill”) to amend Turkish’s content regulation, Law No. 5651. In the preamble of the Bill, it is stated that the disinformation activities targeting Turkey by fake/anonymous accounts have recently reached to a serious level and disinformation has become a threat to the national unity and solidarity of the Turkish Nation.
In this regard, the main focal points of the Bill can be summarized as follows:
- spread of disinformation through fake accounts in social media: “Using fake identities on social content networks and the internet” and “intentionally spreading fake news” introduced as a new crime to the Turkish Criminal Code (“TCC”) to be sanctioned with imprisonment or judicial fine.
- introduction of certain new crimes to the catalogue crimes in the Law No. 5651. The Bill lists the following crimes to be added to the catalogue crimes listed under Article 8 of the Law No. 5651:
· Sexual harassment (first paragraph of Article 105 of the TCC)
· Threat (first paragraph of Article 106 of the TCC)
· Extortion (first paragraph of Article 107 of the TCC)
· Hate and discrimination (Article 122 of the TCC) Offenses against public peace (Articles 213-216 of the TCC)
· Crimes related to economy, industry and trade (Articles 235-241 of the TCC)
- amendments to the certain crimes already existing in the Criminal Code (TCC), which specifically regulate social media-related references: In addition to the amendments to the Law No. 5651, the Bill also introduces certain amendments to the TCC with respect to social media use. Accordingly, specific provisions regarding commitment of (i) sexual harassment, (ii) threat, (iii) the crimes against privacy, public peace, public trust, public health and disclosure of secrets regarding the duty, through use of social media are introduced.
- establishment of a Social Media Complaints Assessment Commission (“Commission”) in all 81 provinces of Turkey and granting certain authorities to such Commission in respect of assessing the contents lawfulness and imposing sanction: The Commissions will assess the complaints coming from the legal and real persons regarding the contents on social media via an online platform to be maintained for such purpose, notify the Information Technologies and Communication Authority (“ITCA”) regarding its content removal/access blocking decision, and file criminal complaints for the contents that constitute a crime. The Commission will be consisted of five members, namely, (i) the head, who is the governor or an officer to be assigned by the governor, (ii) a member to be assigned by the Provincial Police Chief from amongst the expert security personnel, (iii) a member to be assigned by the Office of the Chief Public Prosecutor, (iv) a member to be assigned by the Bar Association from amongst its members, and (v) a member representing the ITCA.
For a content on the social network providers’ platforms, the Bill envisages tiered sanctions to be imposed by the Chairman of the ITCA on these providers, in case they do not comply with the content removal/access blocking decision rendered as a result of the assessment of the Commission. The sanction (i) for the first 24 hours, is imposing an administrative fine ranging from TRY 300,000 to TRY 1,500,000; (ii) for the following 48 hours, is imposing an advertisement ban; and (iii) for the following 7 days, is being able to apply the court for reducing the internet traffic bandwidth by 50%.
On the other hand, while both the government and MHP focuses on regulating disinformation for a while, it is possible to say that MHP’s Bill is not a joint legislative work of MHP and AKP, since the government officials did not make any statements supporting the Bill, and the government is set to submit a much more extensive proposal related to disinformation.
As can be seen, disinformation in the world is described as a “form of terror” that aims to create chaos in society. Therefore, countries are making significant progress in the fight against disinformation. According to the 'Digital News Report' published by Oxford University Reuters Institute in 2018, Turkey is one of the countries most exposed to disinformation. Although Turkey has not yet put its fight against disinformation on a legal basis, recent statements and MHP’s Bill indicate that a new social media law is on the way. Hopefully, with the regulatory framework that will be enacted, disinformation can be prevented without restricting the freedom of expression and freedom of press, which are the cornerstones of a democratic society.