The Article 217/A, which came into effect in Turkey in late 2022, has become known to the public as the "censorship law" and has raised serious concerns regarding freedom of expression. Criticized for its vague definitions and broad scope for interpretation, this law was particularly used as a tool of pressure on journalists and social media users following the February 2023 earthquake. Many individuals advocating for the public's right to access information faced investigations, detentions, and lawsuits, further deepening fear and self-censorship in society. As the Media and Law Studies Association (MLSA), we have launched the Censorship Law Series, which examines the implementation of this law, its societal impact, and its consequences on freedom of expression with contributions from journalists.
Av. Baran Kaya
The crime of “Publicly Disseminating Misleading Information,” a type of crime for which an investigation can be easily initiated against any journalist, even if it ultimately results in acquittal or dismissal, is a crime that can be used in a way that directly obstructs journalistic activities by seizing all digital materials of journalists. By confiscating the digital devices where journalists record their research and work, journalistic activities are obstructed, their research falls into the hands of third parties, and furthermore, the right to protect sources, recognized in Article 12 of the Press Law, is violated.
The investigation, arrest, trial, and punishment of journalists for their news reports still constitute the most significant issue regarding press freedom. The deprivation of liberty of journalists using press freedom and, in a broader sense, freedom of expression, resulting in their detention, arrest, or conviction, is undoubtedly a severe attack on these rights. Due to the deterrent effect of such attacks, sometimes journalists resort to self-censorship, limiting the impact of journalism, while at other times, the consequence of being deprived of liberty results in the direct obstruction of journalistic activities.
The crime of “Publicly Disseminating Misleading Information,” added as Article 217/A to the Turkish Penal Code (TCK) in 2022 and publicly known as the "disinformation law," has become the most common example of cases recently filed against journalists for exercising their freedom of expression. Although most investigations result in dismissal or acquittal, and the prescribed penalty is relatively low (from one to three years in prison), it still plays a facilitating role in the detention and/or arrest of journalists.
Interventions in journalists’ freedom not only lead to serious consequences but also include situations where their activities are directly obstructed, beyond just direct interventions in their freedom. Technically eliminating a journalist’s ability to report news is among these situations. The crime of “Publicly Disseminating Misleading Information” regulated in Article 217/A of the TCK enables such situations to arise in one aspect. Even if journalists are not deprived of their freedom directly due to their news reports, their reporting materials, research, and sources are unlawfully interfered with through "search and seizure decisions." Considering that confiscated digital materials are not returned for extended periods, preventing journalists from continuing their activities for long durations is a clear outcome of the seizure process.
Seizure procedures are often unrelated to the alleged crime. This is because the news reports subject to the accusation have already been published publicly and are not hidden. Therefore, logically, there is no evidence that needs to be collected regarding the news report claimed to contain misleading information through the seizure process.
One of the most recent examples of such cases is the case of journalist Cengiz Erdinç.
The case against Cengiz Erdinç
The case that led to Erdinç’s trial originates from a news report by another journalist, Tolga Şardan. On October 31, 2023, Şardan published an article on the online news site T24 titled "What’s in the MIT report on the judiciary presented to the Presidency?" This article, which shed light on the judicial crisis and the decisions made in major courthouses over the past five to six years, sparked significant public debate. As a result of this news report, Şardan was arrested under Article 217/A.
On October 31, 2023, Cengiz Erdinç posted four tweets evaluating the claims made in this article. It is also evident that the facts he stated in these tweets were based on a book by author Polat Safi. Two of these tweets were:
"As I have written before, first of all, MIT does not prepare reports for Erdoğan out of nowhere. On December 11, 2020, a unit dealing with organized crime, including transnational crime, was established within MIT. Many events and operations, including the process triggered by Peker’s statements, are related to this unit."
"Secondly, for at least two months, a major preparation has been underway in Ankara, involving seven to eight prosecutors, which we can call the 'mother of all operations.' I have repeatedly pointed to Bakırköy Courthouse in this context, indicating a major investigation extending to certain local administrations and enforcement offices."
These posts were also reported by various news websites.
Following Erdinç’s posts, on November 2, 2023, the Ankara Chief Public Prosecutor’s Office launched an investigation against Erdinç on the grounds that "(...) In open-source research, in a broadcast made on the Kronos news site, in posts made on the X platform by a social media user named Cengiz Erdinç on 31.10.2023, statements were made that constitute publicly disseminating misleading information." The prosecutor’s office issued an order for Erdinç’s detention, a search of his home, and the seizure of his belongings. The search, carried out between 15:30 and 16:30, resulted in the confiscation of three computers, seven hard drives, memory cards, 40 USB drives, two tapes, one phone, one SIM card, one external hard drive, one DVD, one CD, and other digital materials due to the absence of forensic imaging equipment and specialists at the scene.
The next day, Erdinç was questioned at the Criminal Judgeship of Peace in Ayvalık, and he was released under judicial control measures, including a travel ban and a requirement to report to the police regularly.
Legal concerns regarding the seizure of digital materials
One of the first issues to be discussed here is that Erdinç’s posts were based on concrete data. The posts already refer to a legally published book. Considering that the first element of the crime defined in TCK 217/A is that the publicly disseminated information must be "misleading information," it is evident that this element is absent at first glance. Moreover, the law states that misleading information must be disseminated “purely with the intent of creating fear, anxiety, or panic among the public” for the crime to be committed. It is unreasonable to claim that these posts were made with such an intent. Therefore, when there is no apparent crime, it is also impossible to argue that the direct seizure of all storage devices and digital materials in the journalist’s home was legally justified.
The necessity that seizure processes during an investigation must be directed toward proving the alleged crime is already evident, and Article 134 of the Criminal Procedure Code (CMK) limits the seizure of computers, computer programs, and records to cases where "there is no other means to obtain evidence." Since the investigation was initiated based on an open-source article or news report allegedly containing a crime, it is beyond doubt that the seizure decision was not intended to prove anything and could not be used as evidence under TCK 217/A.
During the investigation and the trial at the Ayvalık Criminal Court of First Instance, no report was prepared regarding the seized materials, no mention was made in the indictment, and no reference was included in the verdict. There was no mention in the case file of why these materials were seized. Ultimately, Erdinç was acquitted. Therefore, it would not be incorrect to state that the prosecutor’s office's purpose in seizing the materials had no connection to the alleged crime.
The European Court of Human Rights also ruled in Nagla v. Latvia that the unlawful seizure of a journalist’s digital materials due to their news reporting constitutes a violation of freedom of expression. Given that journalism is also a public service, it would not be unreasonable to suggest that the special search and seizure regime that allows lawyers to protect their evidence from third parties should be adapted for journalists as well, enabling them to protect their news sources and research.
