Sunday, September 26, 2010
ERISA DAUTAJ ŞENERDEM
ISTANBUL – Hürriyet Daily News
Bans on websites containing a small amount of content in violation of Turkish law may be depriving people of their constitutional right to free access to information, according to a legal scholar in Istanbul.
The popular websites YouTube and Google are among those Turkish users often have difficulty reaching, a problem the country’s president chalked up to tax-related issues, rather than censorship, in a recent speech.
‘The law initially aimed to protect children and families, but it has mostly been used for political control and censorship,’ Yaman Akdeniz, a lawyer and professor at Istanbul Bilgi University, told the Hürriyet Daily News & Economic Review late last week after an informational meeting. The meeting is a first step toward discussions that will be held among civil-society organizations and the Parliament on the ‘Internet ban’ law in Turkey.
Law No. 5651, which entered into force in November 2007, followed by the approval of three related bylaws, authorizes the country’s courts or its telecommunications authority to cut off access to Internet websites under certain circumstances.
‘Banning access [to Internet sites] does not solve the problem,’ Akdeniz said, adding that problems such as child pornography, encouragement to suicide and the like, included in the framework of the law’s eighth article, cannot be solved in this way. Even if the law could solve such problems, blanket bans on access would be a disproportionate response, he said.
Akdeniz also said there were many gaps in the law and existing provisions were not being implemented properly by the relevant public authorities. ‘Those who commit crimes such as posting child pornography are not punished by the Internet ban,’ he said, adding that it is the general public that is harmed by such bans.
‘This is why I believe the law takes a disproportionate approach,’ he said, explaining that criminals are left free to repeat their crimes while innocent people are deprived of the ability to use Internet website sources for educational, informational and other legal purposes. Moreover, Akdeniz said, the Turkish penal code already covers the crimes listed in Article 8 of the Internet ban law.
Once a court decides to ban access to certain Internet sites, the decision can be appealed within 10 days after it enters into force, a procedure Akdeniz objected to. ‘I see banning access to information as a violation of my constitutional rights,’ he said, adding that there should be no time limit to appeal Internet ban decisions.
Moreover, Akdeniz said, even when he had appealed such decisions on time, the court said he had no right to appeal as he was not a party to the case, something he said was also unjust. ‘The wrong methodology is being applied,’ he said.
Akdeniz also said Internet ban decisions carried the status of preventative measures, which had to be temporary in legal terms, but whose effects could eventually last permanently.
‘The validity time for such decisions must be determined either by law, or by a court decision,’ he said, explaining that the court had said in related decisions that a ban would be annulled once the violation of law No. 5651 had ended.
‘This also constitutes a concern,’ Akdeniz said, adding that Turkish courts considered the violation ended only if the content violating Turkish law cannot be accessed from anywhere around the globe. ‘Although many website-managing companies, such as YouTube, can localize an access ban to [block] content that violates Turkish laws within Turkey, Turkish court decisions have no jurisdiction across borders,’ he said.
President Abdullah Gül said Friday in a speech to students at Columbia University in New York that blocking of websites in Turkey was due simply to unresolved tax issues. ‘A problem that stands is that some Internet sites are unreachable in Turkey, but this is not a result of censorship,’ Gül said. ‘Tax laws have not been updated, and I have urged them to do so.’
Responding to the idea that certain Internet sites had been blocked because their owners had not paid taxes in Turkey, Akdeniz said Turkish tax law does not include any provisions predicting this scenario.
‘Turkey is a country that aspires to join the EU, but its Internet policies are approaching [those of] China,’ Akdeniz said.
The academic said after having exhausted all legal channels within the Turkish system, the European Court of Human Rights in Strasbourg is a last resort, a place where the issue may find a resolution that does not violate people’s fundamental right to be informed and get access to information.