The story so far: On October 14, Turkey’s parliament adopted the much-critiqued ‘disinformation law’ that accords jail terms of up to three years to social media users and journalists for spreading ‘disinformation’. President Recep Erdogan’s ruling AK Party along with its nationalist ally MHP voted for the bill that has drawn concerns about potential curtailment of social media and journalistic freedom in the country especially in lieu of the upcoming presidential and parliamentary polls in 2023. According to Reuters, the development assumes significance especially with surveys reflecting support for the incumbent President and his party tumbling since the last vote. The bill now awaits the final approval of the President.

What does the law entail?

Cumulatively known as ‘the disinformation law’, it comprises about 40 articles that would amend about 23 different laws. Of the 40, the most contentious is Article 29. It designates it an offence to publicly disseminate misleading information about the country’s internal and external security, public order and general well-being for the purpose of causing fear or panic among the populace. The Turkish government has argued that the law would combat cases where the internet is used to share illegal content under false names and where anonymous accounts slander and defame individuals of differing political thought, religion or ethnicity. The article introduces a jail term between one and three years for any violation with the extension of an additional half of the initially stipulated term if the actions are done in anonymity. To implement this law, social media platforms could now be asked to hand over user data to Turkish courts. This is an extension of the law passed in 2020 that required social media intermediaries to remove or render inaccessible certain flagged content on their platforms. Failure would lead to losing 90% of bandwidth reserved for the platform, effectively implying, being rendered inoperable in Turkey.

What are the concerns?

Critics, including the Venice Commission which is the advisory body to the Council of Europe on constitutional matters, have pointed to the unclear interpretation of certain crucial terminologies, especially ‘disinformation’. The legislation accords the responsibility of determining the same to prosecutors. Critics here argue that Turkey being a heavily polarised country and the courts having previously turned against journalists and other social-scientists does not lend a confident picture. For example, Writing for Brookings, Asli Aydintasbas, Visiting Fellow at the Center on the U.S. and Europe points to how watchdogs challenged the official government statistic for September inflation (83.45%). An independent watchdog, ENAG pegged it at 186%. Ms. Aydintasbas says that with the latest set of legislations, content of this kind might qualify as ‘disinformation’. The Commission also highlighted concerns on assertions about what should constitute disturbance to ‘public peace’. “Following the meeting with the authorities, what seems to be the most alarming is that a public protest may be considered in itself a disturbance of public peace,” it stated in its report. This also triggers questions on ‘dissemination’ of the alleged ‘disinformation’ especially when the boundaries between physical and online spaces are blurred. Thus, the legislation lacks clarity on how the entity shall be deemed guilty, that is, for sharing or manufacturing the information (especially in an offline space). It is for the above-mentioned reasons that a jail term appears to be a stretched penal provision.

The Venice Commission states that interference is necessitated when there is a “pressing social need” and must be “proportionate to the legitimate aim pursued”, in other words, the means must meet the specified ends. It is only under certain exceptional circumstances that the state can opt to restrict expression.

Why are journalists concerned?

The law would now recognise news websites as part of mainstream media and they would thus have to comply with the same regulations as those for newspapers. Vice Chair at the IPI, The Global Network for Independent Media, Emre Kizilkaya observed that this would imply that websites will be legally required to publish a refutation to a certain news piece as newspapers — another common tool for censorship. For example, say a digital news outlet publishes a piece on corruption which is flagged by the regulatory authority at a later point, not only would it have to be taken down but a refutation should be published on the same hyperlink.

Adding to the concerns are the Turkish government’s disdain for anonymity — a tool frequently used by journalists to conceal their sources. Ms Aydintasbas argues that investigative journalism “would practically be impossible”.

Turkey already has an unimpressive record pertaining to press freedom. It ranks 149 out of 180 in the Press Freedom Index (2022). Additionally, as per a report of the Journalists’ Union of Turkey, more than 270 journalists were put on trial last year, while 57 others were physically assaulted and 54 news websites and 1,355 articles were blocked.

Why is the backdrop of elections important?

In a nutshell, it is argued that the new law could potentially prevent a pushback against government claims and thus, potentially emerge as the premise to silence the opposition campaigns in the run-up to the 2023 elections and restrict “the already-narrow space for public debate”. According to Ms Aydintasbas, the idea is to exert control over social media which has been a relatively open forum for independent journalism and debate. In a separate context, she observes, “Erdogan is clearly the choice of the ruling Islamist-nationalist coalition but nearly all polls suggest that the desire for change is slightly bigger than that the support for Erdogan.”

Another crucial aspect pointed out by the Venice Commission holds that judgments in these cases cannot be potentially expected earlier than the elections. Thus, a further hold on the information being made available to the public.