İSRAFİL ÖZKAN
The
Law on the Amendment of the Press Law and Certain Laws, which was described as the "Censorship Law" by the public, entered into force after its publication in the Official Gazette on 18 October 2022.
According to Article 29 of the law, any person who disseminates untrue information may be tried with a sentence of imprisonment ranging from one to three years. However, the government
defended the law on the grounds that it was not drafted with political considerations, that the occurrence of the offence defined in the relevant article is subject to stringent conditions, that it does not include any provisions that would amount to censorship, and therefore aims to serve the public interest and combat disinformation.
Although the bill, which started to be debated in the summer of 2022, was postponed to October 2022 after the intense reaction of journalists, national and international press organisations and opposition political parties, it was
enacted into law as a result of both the uncompromising attitude of the Nationalist Movement Party (MHP), which drafted the bill and the opportunity created by the diminishing social reaction.
The Venice Commission, the advisory body of the Council of Europe on constitutional matters that gives recommendations on legislation in countries, stresses in its opinion on the relevant law that there are two different versions of the English translation of the law it received. Moreover, according to the Commission, the text discussed in the General Assembly of the Grand National Assembly of Turkey (TBMM) also differs from the two versions they received. The Commission
emphasises that this has led to confusion. The ambiguity created by this situation, which appears to be a technical error, is actually a sign of the source of criticism against the law.
The failure to clearly define the conditions of "publicly disseminating untrue information in a manner conducive to disrupting public peace, untrue information about national security and public health, intent to create panic, fear and anxiety among the public and conducive to disrupting public peace..." in the law empowers the administration to discretionarily identify the expressions and publications that constitute the offence of disinformation.
According to Burak Bilgehan Özpek, a political scientist and academic who studies freedom of the press, the political authority's claim to regulate the flow of information and thought in Turkey has become
evident. Özpek argues that the primary purpose of the law is to increase the government's pressure on opposition media and citizens in the run-up to the elections, given the loss of votes of the People's Alliance in the polls before the upcoming general elections. Therefore, in addition to the censorship caused by the ambiguity in the definition of the offence of disinformation, "imprisonment up to three years" in Article 29 is
a self-censorship instrument in itself.
In Turkey, one of the countries with the highest number of violations of freedom of expression worldwide, this law signals that censorship and violations of freedom of expression will further
worsen. However, the problems stemming from the law are not limited to this. The law has also created
significant concern about censorship, self-censorship and sanctions in civil society. Civil society in Turkey is one of the areas where the problems arising from increasing polarisation and authoritarianism are strongly felt. Increasing restrictions on the freedom of assembly and association, police violence during meetings and demonstrations, the lack of control and impunity of police violence, administrative pressure and intimidation against civil society organisations are among the main reasons for the
increasing pressure on civil society organisations.
New restrictions on CSOs as a result of the Financial Action Task Force recommendations
The most tangible example of the systematisation of the increasing pressure on civil society is
Law No. 7262 on the Prevention of Financing the Proliferation of Weapons of Mass Destruction, which entered into force in early 2020. This law grants the authority to appoint trustees to non-governmental organisations to governors, i.e. the Ministry of Interior, intensifies the inspections of civil society organisations and introduces regulations such as the dismissal of civil society organisation executives solely based on an investigation and the inability to become an executive of another non-governmental organisation again. Even worse, the confiscation of the property of civil society organisations has become
a simple administrative procedure. This law, which was enacted in line with the recommendations of the Financial Action Task Force (FATF) of the OECD, recommended the establishment of systems to prevent the financing of terrorism and to monitor money laundering activities. However, the law introduced new regulations for the supervision of civil society organisations with an ill-defined definition of terrorism. Furthermore,
no regulation has been introduced to monitor the wealth of Politically Exposed Persons (PEPs), which is an essential part of the FATF recommendations. This shortcoming led to Turkey's listing on the FATF's Grey List of countries under close surveillance.
Moreover, the purpose of the law was interpreted as increasing pressure on civil society organisations rather than implementing regulations to prevent the financing of terrorism and money laundering. According to
Amnesty International Turkey, the threats posed by the overly general and unpredictable nature of the measures introduced by Law No. 7262 create a "chilling effect" to the extent that non-profit organisations are restricted from engaging in their legitimate activities for fear of running afoul of the measures. Following this law, administrative inspections of civil society organisations increased, and some associations were inspected twice a year, while administrative fines were imposed on many associations. Inspections have become a means of sanction when they cause discomfort for the government, especially for women's and LGBTI+ associations and associations receiving international grant support.
When Law No. 7418 on the Amendment of the Press Law and Certain Laws and Law No. 7262 are considered together, it is easy to understand the extent of the oppression faced by civil society in Turkey. Law No. 7262, with its ambiguous definition of terrorism and unclear sanctions, has weaponised inspections against civil society organisations and threatened their very existence. Civil society organisations continue their work under the risk of being accused of supporting terrorism through the people they work with, the reports they publish or the grants they receive. Law No. 7418, however, introduces the crime of disinformation with poorly defined elements and exposes civil society organisations to the risk of being prosecuted for up to three years of imprisonment for the opinions they express on their platforms and the data contained in the studies they publish.
In line with the explanations made so far, it is possible to characterise both laws as "steps that accelerate the erosion of the rule of law" rather than "regulations that protect and develop rights and freedoms in the relevant fields". During the drafting process of both laws, it was not possible for civil society to participate in the proposal processes. Moreover, no data on the reasons for the severity of the criminal sanctions regulated by these laws have been shared with the public. Law No. 7418 was similarly criticised by
the Venice Commission for the disproportionality and necessity of the criminal sanctions regulated by Law No. 7262. Legislative processes that are not based on impartial, concrete and transparent data and do not take diversity and participation into account and omnibus laws that are not adequately debated have become normal legislative processes. This situation continues to cause irreparable damage to
liberal democracy, the rule of law and social peace and reconciliation.
Despite all these evaluations and the pressures that threaten the existence of civil society organisations, there seems to be no other choice for civil society organisations but to continue their work without slowing down.
Some critical issues in this period are as follows:
- The emphasis should continue on well-defined, participatory and open data-based legislative processes as opposed to broad and vague regulations, and legislators should be compelled to be proportionate in their regulations.
- There should be no hesitation to resort to national or international legal mechanisms in case of any violation of rights.
- It has become even more important to strengthen ties with political parties and for civil society organisations to seek their support in campaigning processes.
- Strengthening communication and cooperation with organisations such as the European Union, the United Nations, and other cooperating international organisations will facilitate the support of the international public opinion.
- Ties between civil society and independent media organisations should be strengthened, and efforts should be consolidated to create a broad public opinion in case of future rights violations.
- Civil society organisation staff should be diligent in all administrative and financial transactions, and information and document archives should be kept meticulously.
- Legal departments should be established within civil society organisations, and/or free legal assistance should be provided by grant and funding organisations on relevant issues.
*This article series is supported by the Consulate General of the Federal Republic of Germany in Istanbul
