ON THE WAY TO EUROPE
AN ACTOR-‐NETWORK THEORY APPROACH TO NATIONALIZATION OF
THE INTERNET IN TURKEY
A THESIS SUBMITTED IN PARTIAL FULLFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF ARTS IN
NEW MEDIA AND DIGITAL CULTURE
NAME: GIZEM EZGI AKDAG STUDENT NUMBER: 10619887
THESIS ADVISOR: ESTHER WELTEVREDE SECOND READER: ANAT BEN-DAVID
Keywords: Europeanization, national web studies, actor-network theory, Turkey, Digital methods
2
ABSTRACT
This thesis focuses on Turkey's path towards cohesive Internet regulation against the competing frameworks of nationalization and Europeanization. The term nationalization derives from national web studies, an emerging subfield of new media studies. The term Europeanization is used from a political science perspective to describe the European Union instigated democratization of candidate countries through reform making for the purpose of becoming a full member of the European Union. This paper argues that two diverging paths shape Internet regulation in Turkey. While the former closes national borders on the web by demarcating its jurisdiction, the latter opens up borders through transnationalization. In order to understand these dynamics, the study engages with a critical assessment of the
amendments made to the Law on the Regulation of Publications on the Internet and on the Suppression of Crimes Committed through the Internet, also known as Article 5651. To this end, this study is interested in the usage of nationalistic discourses and censorship practices as well as regulatory and technical efforts made to align with the rules and regulations of the European Union, which is known as the Acquis Communautaire. By pursuing a comparative look, this study intends to capture the dynamics of national web as a space diverging from the EU and reemerging as a Turkish national web space as the controversy unfolds. In doing so, the study wishes to answer the research question: How can the Internet law be understood as an indication of Nationalization over Europeanization of the Internet? In order to operationalize the research question, this thesis relies on the Actor-Network Theory and Digital Methods.
3 ACKNOWLEDGEMENTS
I would like to take this opportunity to thank my thesis advisor Esther Weldevrede who provided constant support and supervision during the thesis writing period as well as Anat Ben-David for being the second-reader of this study. A special thanks goes to my family who has always been encouraging and caring. I would also like to thank the Jean Monnet Scholarship Program, which made my master education possible and Amsterdam for being a second home to me. I would like to have this opportunity not to thank my broken-ankle that makes this master education more difficult. Yet, I would like to thank my friends who helped me out to survive, especially Pascal. And I am profoundly grateful to Lani for being my proofreader, life-coach and amazing sister to me. Finally, I am indebted to the young people in Turkey, who are not afraid to fight for their future and risk their lives working for it.
4
TABLE OF CONTENTS
CHAPTER 1:INTRODUCTION 6
CHAPTER 2: EUROPEANIZATION OF THE INTERNET 9 2.1.TOWARDS EUROPEANIZATION OF THE INTERNET 9 2.2.EU CONDITIONALITY AND AKP IN A NUTSHELL 9
2.3.THE EUROPEAN INTERNET 13
2.4.THE INTERNET IN TURKEY AND ITS EUROPEANIZATION 15
2.5.GEZI REVOLT 18
2.6.AMENDMENTS MADE TO THE ARTICLE 5651 21
2.7.GETTING AWAY FROM THE EU? 26
CHAPTER 3: NATIONALIZATION OF THE INTERNET 27 3.1.NATIONALIZATION OF THE INTERNET 27 3.2.NATIONALIZATION OF THE INTERNET IN TURKEY 29 3.2.1.LEAK 33
3.2.2.LGBTI WEBSITES 34
3.2.3.ALEVI WEBSITES 36
3.2.4.KURDISH WEBSITES 37
3.2.5.DISSENT 39 3.3.HOW DOES TURKEY EXERT INTERNET CONTROL? 39 3.3.1.REGULATION THROUGH INTERMEDIARIES 40 3.3.2.DISCREDITING THE SOCIAL MEDIA 40 3.4.DEMARCATION OF THE TURKISH WEB 42
CHAPTER 4: METHODOLOGICAL UNDERTAKING 43 4.1.ACTOR-‐NETWORK THEORY 43 4.2.DIGITAL METHODS 46
4.3.SEARCH AS RESEARCH 47
4.4.QUERY DESIGN 49
CHAPTER 5: PRACTICAL UNDERTAKING 51 5.1.WEB RESULTS 54 5.2.IMAGE RESULTS 61 5.3.DISCUSSION 69 CHAPTER 6: CONCLUSION 71
5 CHAPTER 7: BIBLIOGRAPHY 74 CHAPTER 8: APPENDIX 95
6
CHAPTER 1: INTRODUCTION
Amendments made to the Law on the Regulation of Publications on the Internet and
on the Suppression of Crimes Committed through the Internet, also known as Article 5651 or
the Internet law on February 18, 2014, instigated a worldwide debate about the state of democracy in Turkey (ntvmsnbc 2014). Most notably, with these alterations, Turkey's Telecommunications Authority (TIB) has authority to ban the websites without acquiring a court order (Uras 2014). The new legislation gives authority to the TIB to force ISPs to block access to websites that are deemed unethical within four hours following a complaint lodged for the violation of privacy rights (ibid.)
While both academics and commentators contend that this law renders Turkey one of the most pervasive censors of the Internet, government officials argue that these new laws aim to protect the “sanctity of personal privacy” (Kashi 2014). While unconvinced, commentators continue to note the already-fragile media freedom in Turkey, will be even more threatened with increasing government pressure and surveillance backed by this regulatory framework. Furthermore, the approval of these amendments to the Internet law is also seen as a change of direction that is steadily “shifting [Turkey] further away from EU norms” especially considering that Turkey is currently (and has been for decades) a candidate in pursuit of full membership to the European Union (the EU) (Petrides 2014).
In light of this debate, I suggest that there are two paths in regards to the regulatory framework dealing with the Internet. The first path is Europeanization, which refers to the implementation of European standards and harmonization of national laws in accordance with Acquis Communautaire that defines the European Union (The EU) and its rules and regulations. The Acquis Communautaire as it currently stand is divided into 35 chapters covering different reform areas and is comprised of around 80.000 pages. Considering the amount of rules and regulations to align, European Union candidate countries face a
seemingly endless and rigorous process. Nevertheless, countries with the aspiration of being a full member accept to adopt institutional and legal reforms. On the same account, with the aspiration of accession to Europe, Turkey followed an ambitious reform program, especially between the years 2000 and 2005 under the leadership of the Justice and Development Party
7
(AKP)1. In regards to Internet regulation, Turkey takes steps to make its Internet,
telecommunications and media infrastructure and regulatory framework align with the EU. However, while being eager to adopt some principles, Turkey conversely behaves reluctantly with regard to the implementation of other reforms such as e-commerce and privacy laws. Indeed, Turkey has not enacted laws regulating these areas. Nonetheless, Turkey’s efforts show an overall commitment to act in accordance with EU conditionality.
The second path I will discuss is Nationalization which is the alternative to
Europeanization, and which aims to draw Turkey’s national borders on the web. The concept of Nationalization derives from national web studies, an emerging subfield of new media studies that is concerned with the growing localization and emerging national borders drawn and mapped on the Internet, which was once conceptualized as cyberspace and understood to be borderless (Rogers 2013; Rogers et. al 2012;Baeza-Yates et al. 2007; see also Goldsmiths and Wu 2006). Countries by employing technical and legal means attempt to control the information to which their citizens have access. The OpenNet Initiative (ONI)’s 2012 Report indicates that 42 out of 74 countries exert selective filtering while 21 countries apply
substantial or pervasive filtering namely by exposing 620 million people to filtered content, in order to gain control over the flow of information (2012). Thus, almost every country in the world including democratic countries attempt to delineate national borders to varying degrees. Some countries attempt to realize their own national webs. For instance, Iran’s plan to create “a genuinely halal network, aimed at Muslims on an ethical and moral level”, for putting a close to “the fight for control of the Internet” is an example of such ambition (Rhoads and Fassihi 2009). On similar account, communication Minister of Turkey Lütfi Elvan claimed that Turkey may as well be implementing its own national web by saying that: “Instead of www, a ttt system could be formed. Turkey and other countries could establish their own domains. Such a move would detach the Internet systems from each other. This is a controversial issue.” (Haaretz 2014). Combined with the wholesale blocks of popular social media networks namely YouTube and Twitter, the questions of Turkey’s intention for rendering national borders even more visible and binding come to surface.
The objective of this study is to engage in a critical assessment of both
Europeanization and Nationalization in order to analyze the future direction of Turkey with
8
regard to its Internet regulatory framework. For this end, this study is interested in the usage of nationalistic discourses and censorship practices as well as regulatory and technical efforts made to align with the Acquis Communautaire. By pursuing a comparative look, this study intends to capture the dynamics of national web as a space diverging from the EU and
reemerging as a Turkish national web space as the controversy unfolds. In doing so, the study wishes to answer the research question: How can the Internet law be understood as an
indication of Nationalization over Europeanization of the Internet?
In order to respond to the research question, both of the aforementioned paths and their respective effects on the Turkish web space will be explored in the following chapters. The study starts with the explanation of the first path, Europeanization. In this part, after describing what Europeanization means, the notion of Europeanization of the Internet and the Europeanization of the Turkish web will be explored respectively. These sections will be followed by a closer look at the Gezi Revolt, the protests that took place in May 2013 in Turkey and led to approval of the Internet law. After giving the contextual information, the content of the Internet law will be visited. In the conclusion of this chapter, the critical assessment of the Internet law will be furthered with the discussion whether Turkey is moving away from the EU. The following chapter will focus on the other path of Nationalization. After defining Nationalization, the chapter will deal with the strategies utilized for the demarcation of National web by means of defining and excluding what or who is not allowed and homogenizing. There along, by introducing the idea of the “others”, the study intends to make claims about which groups’ online existence is annihilated in Turkish national web. This study further aims to explore the methods utilized for controlling the online population as well as keeping the offline population as offline. The following chapter aims to operationalize the research question by relying on Actor-Network Theory for its theoretical lens and digital methods for its methodological framework. This chapter intends to make a cross-country and comparative analysis to answer the following questions:
how is the Internet law framed in national and international sources? and how can news in different national and international framings contribute to the understanding of Turkey’s change of direction? By responding these questions, this chapter aims to understand whether
9
All in all, this study aims to contribute to national web studies by focusing on a country that has not been sufficiently covered in academic literature. Furthermore, by focusing on EU documents as the corpus and implementing a political science concept --
Europeanization - to study the Internet, I intend to bring a novel lens to national web studies,
which can be categorized as a “transnational web” that provides explanation for countries’ motivation to open up their national borders on the web to become a part of a transnational network. By incorporating the concepts of political science and new media studies, this study aims to provide a new approach to country-profiling. Additionally, this study contributes to the field by providing a real-time analysis as it is written during the time that the
controversial Internet law was approved and as well as during the immediate repercussions thereafter.
CHAPTER 2:EUROPEANIZATION OF THE INTERNET
2.1. TOWARDS EUROPEANIZATION OF THE INTERNET
This chapter focuses on the first direction that shapes the regulatory framework for the Internet in Turkey, Europeanization. The chapter starts with the description of the concept “Europeanization”. Following this, how Europeanization of Turkey occurs will be explained. In order to explain what Europeanization of Turkish Internet refers, the concept of the
European Internet will be introduced. Following this, the Internet law and the amendments made to it will be described. Drawing upon these sections, whether the amendments contribute to Turkey’s getting away from the EU will be discussed.
2.2. EU CONDITIONALITY AND AKP IN A NUTSHELL
Many words can be used to describe relations between Turkey and the European Union, however stable is not one of them. Currently, it is being argued that the relations between Turkey and the EU have reached a stalemate (see Aydın-Düzgit and Keyman 2012). The reasons that render the membership prospects difficult for Turkey are listed as Turkey’s large size, its dominant Muslim population, as well as its comparatively weaker economy (Archik 2014). In addition to this, whether Turkey belongs to Europe adds another obstacle to the questions regarding Turkey’s membership (Nicolaidis 2003). All told, Turkey’s
10
commentators, politicians and academics point to Turkey as a model that synthesizes Islam and democracy, one that can constitute an example to the Arab World (Altunisik 2005; Kirisci 2011). Turkey’s demonstrative effect, which refers to “stimulating and providing models of subsequent efforts at democratization” (Huntington 1991, 101) is not only a prime example for other Arab countries to follow but also shows how “change can happen and how it can happen” (Kirisci 2011, 35). In a similar vein, TESEV’s survey carried out in the Middle East with the aim to examine the perception of Turkey’s role in the Middle East shows a similar trend. While slightly decreasing from 2011 to 2013, Turkey is considered “a model for region countries” with an overall 51% positive responses (TESEV 2013, 21-2).
While Turkey is of strategic importance for the EU, the prospect of being a member has also had an indispensable effect on Turkey’s democratization process. After the
announcement of Turkey’s candidature during the Helsinki Summit in 1999, relations between the EU and Turkey took a new turn with the decision to start the accession negotiations in December 2004. The membership criteria set by the European Council in Copenhagen in June 1993 state that the “candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union.” (European Council 1993, 13). Becoming a full member of the EU requires compliance to the Acquis Communautaire, which consists of thirty-three separate chapters. For each chapter to be realized every member state should agree that the candidate country in question fulfills all the requirements successfully. The negotiation talks are only set after all the chapters have been completed. In the case of Turkey, after opening and provisionally completing the chapter
titled Science and Research, thirteen chapters have been opened for negotiations so far2.
Regardless of the fact that only one chapter is closed, several commentators and academics have contended that the prospect of full membership to the EU has become a positive impetus
2 Thirteen chapters opened to negotiations are:4) Free Movement of Capital, 6) Company Law 7)
Intellectual Property Law 10) Information Society and Media 12) Food Safety, Veterinary and Phytosanitary Policy16) Taxation 18) Statistics 20) Enterprise and Industrial Policy 21) Trans-European Networks 22) Regional Policy and Coordination of Structural Instruments 27) Environment 28) Consumer and Health Protection 32) Financial Control. For details see:
11
for Turkey’s reform-making process (Kubicek 2005). Following the opening of accession negotiations, Turkey has adopted numerous reforms, which are considered as steps taken forward to the consolidation of democratic rights, including in the areas that seemed beyond the realm of possibility such as initiating Kurdish broadcasting, curbing military power and so on and so forth (Kubicek 2005; Tocci 2005). As the political economist Ziya Öniş
indicates, the reform process started with the accession talks can be conceived “as a period of profound and momentous change in Turkish history …[that] would have been impossible in the absence of a powerful and highly institutionalized EU anchor in the direction of full membership” (Öniş 2003, 13).
Democracy promotion through conditionality has been regarded as one of the most essential projects of the EU for Central and Eastern Europe countries as well as Turkey (see Pridham, Herring and Sandford 1994; Zielonka and Pravda 2001). To be able to be a full member of the EU, candidate countries adopt a series of reforms to harmonize their domestic policies with the Acquis Communautaire. This European-Union prompted policy making process is referred to as ‘Europeanization’. Cowles et.al defines Europeanization as “a process of construction, diffusion and institutionalization of formal and informal rules, procedures, policy paradigms, styles, “ways of doing things”, and shared beliefs and norms which are first defined and consolidated in the making of EU decisions and then incorporated in the logic of domestic discourses, identities, political structures and public policies” (qtd. in Alpan and Diez 2014, 69). To put it simply, Europeanization relies on “reinforcement by reward” logic to push candidate states to implement democratic reforms aligning with the Acquis (Yılmaz and Soyaltın 2014,12).
While the conditionality of the EU for full entry is conceived of as a trigger or anchor
for Turkey for democracy promotion (Tocci 2005), a number of questions regarding the diffusion of these democratic reforms in the public (Tocci 2005, Ülsever 2005) and political elite’s motivations for political change still remain as a matter of concern (Tocci 2005; Kubicek 2005). Here, Kubicek differentiates the “logic of appropriateness” and “ logic of consequentiality” as forms of catalyzers for political change in candidate countries (2005, 264). While the former points to a bona fide change that occurred in public values and beliefs prompted by international actors, the latter holds a more Machiavellian approach, which refers to the reforms-making process for the sole purpose of being a full member of the EU.
12
Europeanization occurs through conditionality and “the adoption of European standards and practices in various policy areas” ( Kubicek 2013).
In the Turkish case, the Justice and Development Party (Adalet ve Kalkınma Partisi-AKP) became an important actor for Turkey’s European Agenda after coming to power as a majority government from elections held in November 2002. While the AKP is rooted in political-Islam strongholds, it nevertheless became the most prominent and the only political party that put in such concerted efforts for full membership (Öniş 2010, 30). As the
reincarnation of two banned Islamic parties, the AKP repositioned itself as liberated from republican secularism and the anti-globalist discourses of its ancestors (Özel 2003). The AKP acted in eagerness to make reforms to help Turkey’s candidacy including military-judiciary reforms, which were shaped by the military constitution written in 1982. To this end, the AKP passed 350 reforms that were approved between the years 2001 and 2003 (Cengiz and Hoffman 2013). The EU officials praised these efforts as a sanguine commitment to
membership to the EU. In other words, the AKP was considered to be following a “logic of appropriateness”. Furthermore, the AKP employed EU conditionality and prospect of membership as a political strategy to enhance its political base towards the center ( Özel 2003; Aydın-Düzgit and Keyman 2012).
The AKP’s eagerness to adopt reforms was replaced by a change characterized by an embracement of a more authoritarian direction following its election victory in 2007 (Aydın-Düzgit and Keyman 2012, 104). After having the majority of votes and coming to power as an one-party government for the second time, the AKP embraced a more authoritarian tendency, which was supported with a third election victory in 2011(Aydın-Düzgit and Keyman 2012, 104). European Commission’s 2008 Progress Report acknowledges this by expressing their concerns on a number of areas such as freedom of expression, human rights etc. and noting that the AKP “did not put forward a consistent and comprehensive program of political reforms” after winning the 2007 elections (2008, 7). Specifically, the AKP has only made 20 reforms annually since 2005 (Cengiz and Hoffman 2013). Moreover, the AKP stopped using EU conditionality in their rhetoric to attract votes. Additionally, Aydın-Düzgit and Keyman notes: “ … while AKP, was trying to ‘govern’ through reform rather than rule in its early years in government, it is currently ‘ruling’ but not governing” (2012, 104).
13
In light of this, freedom of expression has become the main criticism and concern expressed by the EU about Turkey. Not only the EU, but also numerous NGOs expressed their concerns regarding Article 301, which prohibits insulting Turkishness and Ataturk and anti-terrorism laws that are used to detain journalists or suppress opposition. While previous reports stated the violation of freedom of expression and human rights as a problem, the tone of criticism was changed in a negative way in a 2011 report, which refers to the “high number of violations of freedom of expression” in Turkey. Yet, while commentators expressed their concerns by claiming that “the end of an euphoria that emerged with EU harmonization packages of early 2000s” (Gökçenay 2011, 202), the AKP embraced a more assertive stance (Kubicek 2013, 203). Prime Minister Erdoğan’s statement in a report prepared by the
European Parliament regarding detained journalists exemplifies this standpoint: “Their duty is to prepare the report, ours is to go our own way” (Sazak 2011).
The following sections will focus on the notion of European Internet and discuss how the Internet in Turkey is Europeanized. After exploring the amendments, the following section will analyze how the Internet in Turkey started to diverge from the EU.
2.3. THE EUROPEAN INTERNET
As Servaes and Heindryckx notes, the idea of creating an information society in Europe came into being as a reaction to technological developments in the United States and Japan (2002). The EU seemed to fall behind when compared to its global competitors’ ICT initiatives (Servaes and Heindryckx 2002). For this reason starting from the late 1980s, the EU embraced a highly determined set of telecommunication reform policies (Bauer, Berne and Maitland 2002). However, as the scholarship on European information society illustrates, regulation-making on telecommunications and audiovisual policies were burdensome (Venturelli 2002). In addition to competition from different national and social interests, questions regarding which market model the EU should embrace resulted in this challenge (Venturelli 2000). In the end, the European liberal market model, which relies on principles such as privatization, competition and deregulation, were embraced for the regulation of
audiovisual and telecommunications services (Venturelli 2002). Building upon these values, the EU plans to establish the Digital Single Market, which would increase the EU’s GDP by 500 billion a year, corresponding to a rise of 1000 Euro per person (Kroes 2013).
14
In this context, the EU’s governance, rather than developing a single regulatory framework, relies on a “discursive rather than a directive” approach (Walker and Akdeniz 1998). This approach stemming from the realization of “condemnation of content is itself culturally and politically specific” leaves the authority to countries to decide what is harmful (ibid.). Even though, not binding countries legally, this approach discursively invites
countries to make decisions about the extent and method selected for combating harmful content reasonably. For this reason, European Commission’s Communication on Illegal and
Harmful Content on the Internet that come into force in 1996 by positing illegal and harmful
content as different categories suggests that: “These different categories of content pose radically different issues of principle, and call for very different legal and technological responses. It would be dangerous to amalgamate separate issues such as children accessing
pornographic content for adults, and adults accessing pornography about children” (European
Commission 1996). An action plan for a safer use of the Internet prepared by European Commission in 1998, states that these two disparate types of content should be dealt
differently. Moreover, the determination of the “children accessing pornographic content for adults” as harmful and the decision of punishment was left to national states (ibid.). On the other hand, “adults accessing pornography about children” is also perceived as illegal (ibid.).
Thus, the European Commission recommended that member countries standardize their laws, which are coping with illegal content including child pornography, as well as work jointly for their enforcement, assure ISPs liability and incite self-regulation (McIntyre and Scott 2010,11). The liability of ISPs is consolidated with the E-Commerce Directive (Akdeniz and Altıparmak 2008, 66; Akdeniz 2010, 263). In addition to content related to sexual exploitation of children, the regulation of other types of harmful content has been taken to European agenda such as combating terrorism, racism and xenophobia. However member states continue to apply their national laws when dealing with such content (Akdeniz 2010, 263). Worth noting, however is the fact that although there is not a single
all-encompassing framework regarding filtering and censoring under the umbrella of the EU, European Member countries do still exert filtering (Akdeniz and Altıparmak 2008, 68).
The liability of ISPs in the EU is largely determined by the E-Commerce Directive (Julià-Barcelo and Koelman 2000, 231). In the E-Commerce directive, ISPs are not held responsible for filtering or blocking the content deemed illegal or harmful with the stipulation
15 that: “(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. ” (2000, Article 14 para. 1). Thus, ISPs are not completely exempted from content policing and following a notification they are required to remove the content.
Another distinct character of the Internet regulation in the EU is its commitment to protect privacy rights. The Data Retention Directive was approved by the European Parliament and Council of the EU in 2006. This directive, while emphasizing that privacy rights should be protected, requires member states to ensure maintenance and storage of data. According to this, ISPs and networks should retain data, which is captured from telephone and electronic communications, between six months and two years (European Commission 2006, article 7). Bignami argues that this was an essential change for European countries since previously companies operating in member countries were legally required to delete personal information of users from their databases (2007, 238). However, terrorist attacks such as the train bombings in Madrid in 2004 made the importance of data retention apparent.
In conclusion, the European Internet, similarly with the EU itself, consists of
heterogeneous transnational and national rules and regulations. While member countries have the last say or complete authority on some issues, there are other topics such as
child-pornography and commitment to building a single digital market where the EU acts as a supra-national institution providing the binding regulatory framework. Furthermore, the commitment of member countries to protect the privacy of its users is one of the hallmarks of European Internet.
2.4. THE INTERNET IN TURKEY AND ITS EUROPEANIZATION As a candidate country, Turkey was required to implement policies and make infrastructural developments in several areas including information society. To this end, in 2001 Turkey was added to the eEurope+ Action Plan as a candidate country. The Plan aids in the set up of goals and draws plans for being an “information society” as it is defined by the EU. This program is defined by the Commission as: “the positive action on the basis of a
16
strong, political commitment is needed to ensure that EU Candidate Countries use the full potential offered by Information Society and avoid a further digital divide in EU.” (2001,1). The goals set by this program envision “cheaper, faster, secure Internet, investing in people and skills and stimulate the use of Internet” (2001,1- 2). This plan was followed by a government initiative, which is known as e-transformation project approved by AKP
government in 2003. The report prepared a decade later indicates significant progress with an increase in the number mobile subscriptions, competition within the mobile market, the number of fiber-based broadband bands (FTTH AND FTTB/C) and reduction in retail prices (European Commission 2012, 53-54 see also Cullen International 2012, 3-4). Despite these developments and a significant increase in Internet penetration, Turkey still lags behind the target set by the Digital Agenda since only 36% of the Turkish population uses the Internet, which is well below the member countries’ average of 68% and Digital Agenda target
average of 75% (ibid.2). Worth noting, the digital divide remains significant among certain
segments of Turkish population (see Çilan et. al 2009; Polat 2012).
In addition to efforts made for complying with Digital Agenda Europe, Turkey’s Internet policy’s harmonization with the EU can be seen in the frame of Chapter 10:
Information Society and Media, which was opened on 19th of December 2008. The media
part of the Acquis deals with the “free flow of audiovisual media services” (Ministry for EU Affairs 2011). The Acquis relates to Information society, which is established with the “New Regulatory Framework” in 2002, and intends to “liberalize electronic communication
services and networks, to remove the barriers preventing the effective function of single market and to create the modern and universal services.” (Ministry for EU Affairs 2011).
After the opening of this chapter, Turkey has made several steps to fulfill European standards including the improvement of the infrastructure and alignment of legal framework. To begin with, the privatization of Turk Telekom is considered a major step taken forward to further compliance with the EU’s call for liberalization of the telecommunications market. Furthermore, the approval of law 4502 that regulates market competition and the foundation of the telecommunications authority consolidated Turkey’s commitment to the liberal market. Approval of the Electronic Communications Law in 2008 and the foundation of the Cyber Security Council in October 2012 in order to instigate a national cyber security plan
17
(European Commission 2013) are also seen as positive developments in the legal and regulatory framework.
However, in spite of the efforts made, it has been noted that further efforts are needed for chapter to be completed. To begin with, the regulatory framework is criticized for being complex as both the primary and secondary laws set the legal basis of electronic
communications (2013, 25). For instance, the Telegraph and Telephone Law (Law no. 456), which was approved in 1924, is still effective and also addresses electronic communications along with Electronic Communications Law (no. 5809) (2013, 24). From the perspective of the EU, this draws a rather chaotic legal image and poses inconsistencies with the EU regulatory framework (2013, 116). Additionally, Turkey has not approved e-commerce and privacy laws and signed European Convention on the Legal Protection of Services based on Conditional Access yet. (European Commission 2013, 31).
To continue, the progress reports on Turkey prepared by the Parliament, Commission and Council have repeatedly emphasize the scant effort made to enhance or ensure media freedoms. For this reason, in the progress reports made between the years 2009 to 2013, the assessments on Chapter: 13 include references to the Chapter 23: Judiciary and Fundamental Rights. Reports raise grave concerns over the government’s pressure on journalists, writers and media since it led to self-censorship practices. This is seen as a violation of freedom of speech and thought as journalists face trial and imprisonment when they write pieces about sensitive issues such as Armenian and Kurdish issues. Furthermore, the criticisms in the reports include the media-ownership structure that is concentrated in the hands of few media conglomerates, which have operations in other business branches. This high concentration and operation in other industries turn media companies more prone to government pressure by means of tax and other regulatory tools. Moreover, the recurrent website bans as well as the content restrictions on the Internet defined by the Internet law are stated as a breach of freedom of expression and thought in the reports. Such circumstances have led critics to urge Turkey to change its Internet law.
All in all, positive initiatives, if not sufficient, have been taken by Turkey in order to align and harmonize its Internet policies with the EU. When examining the progress report, it is possible to claim that Turkey works on some of its institutional and technical shortcomings
18
keenly, while taking it slow when making regulations on other areas such as e-commerce and privacy protection laws. Nevertheless, it is clear that Turkey, even though often slowly, follows a progressive path towards accession to the EU by implementing the Acquis. This will be discussed in more detail under the section of Article 5651, in which current legal and political developments rather than signify a different trend, can be roughly elaborated as a regression on the way to Europe. In doing so, the next section will discuss Gezi Revolt in order to give contextual information which led to the approval of the Internet law.
2.5. THE GEZI REVOLT
The end of May 2013 witnessed the biggest social uprising in Turkish history, which surfaced Turkey’s drifting apart from the EU. Due to its transformative and initial nonviolent character, the Gezi Revolt is described as “a process of backfire” or “an act of political jiu-jitsu” (Anisin 2014, 3). The Gezi revolt started as an environmentalist protest against an order in which the cutting of multiple trees in a park was given by the AKP government to the Istanbul Metropolitan Municipality for building a shopping mall. However, this peaceful protest turned into the most popular uprising in the Turkish history with the participation of thousands following the brutal police force used to combat protestors. Whilst police’s excessive use of water cannon and tear gas, anti-government protests spread throughout the country and were held in 79 cities. Furthermore, the protesters were a mix of groups from all strata of the country ranging from LGBT communities to the Kurdish community, from Alevis to AKP voters who were discontent with Erdoğan’s leadership. From there, the environmentalist protest became a mass movement that gathered millions for the purpose of condemning uncertainties of economic living conditions, intervention in private life and divisive rhetoric used by AKP officials (Farro and Demirhisar 2013). Regardless of
increasing dissent, Erdoğan embraced a harsh vocabulary rather than a conciliatory one and blamed the protesters for being chapullers, terrorists and peons of foreign countries such as
Israel3. Halk TV, one of the few TV broadcasting channels that reported the protests from the
beginning, claims that the uprisings aimed to protest Prime Minister Erdoğan’s
“...oppressive, arrogant and increasingly authoritarian” style of governance (qtd. in Öncü
3See Wikipedia page for details of term ‘chappulling’ reappropriated from the word çapulcu which
19
2013,1). The Anti-Capitalist Muslims, a key player in the Gezi revolts, explained the revolts as born from the “anger at Erdoğan’s determination . . . to impose his Islamic views...through giant construction projects, alcohol restrictions, rants against abortion or censorship of the arts and the media” (Economist 2013).
With entire world watching Turkey, the Turkish media did not cover any protest related news. Penguins became the saturation and symbol of the media’s failure as CNN Turkey was broadcasting a penguin documentary even though the protests were going on in their full severity and many people were injured. While severely criticized, the mainstream media’s failure was not a surprise. Turkey’s media structure is highly concentrated and only a couple of media conglomerates own and control most of the TV channels, newspapers and magazines. Furthermore, these media companies also operate in other sectors such as energy, construction and banking etc. This concentrated and uniform ownership structure makes media companies prone to government manipulations. For example, after covering news about the Deniz Feneri scandal, Dogan TV Holding faced a tax punishment, which resulted in the resignation of their CEO and the selling one of their TV channels Star TV (Kurban and Sozeri 2012; Bulut 2013). Moreover, some media conglomerates like Dogus Holding are known for their close ties with the AKP government (Bulut 2013). Besides that journalists are under constant threat of being punished. In fact, in the past few years alone some 33
journalists were arrested and many others faced lawsuits. Reporters Without Borders’ press freedom report not only ranks Turkey as the 154th country, it also announces Turkey as the “enemy of Internet”. These factors led to a mute and unfree mediascape that fail to cover Gezi protests.
Yet, Turkish’s media failure was compensated with the usage of social media and live stream channels as protesters used them in order to communicate with each other and the rest of the world. Facebook, YouTube, Twitter and other online live-stream channels not only became sites of expressing dissent, but also an alternative media scape that provided news from the ground. Digital media technologies and networks were used for the purpose of communicating, organizing and mobilizing. New media usage, humor and subversive aesthetics became distinguishing marks of the Gezi Revolt (Dagtaş 2013; Bulut 2013). Furthermore, some channels also helped individuals from all over the world to express their solidarity with Turkey. Protesters from different Occupy Movements that took place in
20
Greece, Brazil and Egypt posted their solidarity videos and posted tweets. Anonymous also released a video in which they stated that: “they will not forget, they will not forgive” the Turkish government. Leading academics also showed their support. Noam Chomsky avowed himself “a chapuller in solidarity” (The Chomsky Videos 2013).
In addition to this, the Gezi Revolt also found a massive interest in the international political arena and media. Several politicians and international organizations released statements indicating their concerns regarding the violations of freedom of expression and freedom of assembly in Turkey and expressed their support to protesters who demand and exercise their democratic rights. For example, the US released several statements including Spokesperson for the White House National Security Council Laura Lucas’ release saying that peaceful protests are “part of democratic expression, and we expect public authorities to act responsibly and with restraint” (Resneck 2013). The EU also expressed their grave concern via several statements issued by the European Parliament which denounced the police’s “disproportionate and excessive use of force” (European Parliament 2013).Taken into consideration of all these developments, it was argued that that Turkey’s accession to the EU was endangered (Ezikoğlu 2014). Not surprisingly, the 2013 Progress Report on Turkey was highly critical of the way the Turkish government dealt with the Gezi Revolt. While the report states grave concerns about polarizing rhetoric, excessive use of force, freedom of media and freedom of expression, it also contends that Turkey can rejuvenate the accession process by adopting and implementing the reform package (European Commission 2013).
In the aftermath of the Gezi Revolt, several commentators and politicians were divided into two camps: those who support Turkey’s accession to the EU and those who are against. The first group argues in favor of Turkey’s entrance with the claim that the Gezi Revolt proves Turkish citizens’ of their democratic rights. This argument was furthered by some with the claim that the Gezi Revolt was a product of democratic debate culture made possible by the AKP government (Grabbe 2013). Grabbe claims that the “Twitter effect is a net element in Turkey-European Union relationship” (ibid.). This group contends that Turkish citizens should not be punished because of their governments’ actions, but be awarded. Leaving Turkey outside would be punishing Turkish citizens, not the government. On the other hand, the second group opposes Turkey’s accession claiming that the violence exerted against protesters is proof that Turkey is not a democratic country. Furthermore, this
21
group argues that even though the protests were a positive indication of democratic rights knowledge and usage, the protesters were a minority of country and do not represent the majority.4
Commissioner Stefan Füle put an end to this discussion by saying: “I have heard voices who said that the right response of the EU to events in Gezi Park should be for the Union to disengage. But the message of the package adopted today is different: the EU needs to step up its engagement and continue to support Turkey and Turkish citizens in fulfilling their legitimate expectations of further reforms that can strengthen freedom of expression, freedom of media and freedom of assembly” (Hürriyet Daily News 2013). This positive approach however was contrasted with assertive claims of Erdoğan who was giving signals that Turkey could be a part of Shanghai Cooperation Organization (SCO), known as Shanghai Five along with Russia, China, as alternative to the EU since “ Shanghai Five is better, stronger” (Gürsel 2013). This statement shows that the AKP is less apt to adopt reforms especially in the most criticized and controversial areas such as freedom of expression, freedom of assembly, media freedom and human rights.
2.6. AMENDMENTS MADE TO ARTICLE 5651
By discarding international criticism and warnings coming from EU institutions and countries, the AKP government continued to crackdown on protesters. Protesters were not only exposed to violence by the police, but were also punished because of their online acts. The AKP government started a witch-hunt on social media and forced social media
companies to cooperate with them. Tens of people were arrested for posting tweets that incited anti-government sentiments by “spreading untrue information” (Harding and Letsch 2013). Furthermore, it was claimed that the Turkish government requested the details of the users who shared posts related to protests or criticism of government. While Facebook accepted that the Turkish government made these requests, they refused to share user information (Hurriyet Daily News 2013). In addition to this, Turkey began to force Twitter to open up an office in Turkey (Özbilgin and Burch 2013). Transport and Communication Minister Binali Yıldırım explained the reason of this request: "When information is requested, we want to see someone in Turkey who can provide this ... there needs to be an
4 See some of MPs arguments regarding Turkey’s membership bid in the aftermath of Gezi Revolt: “
22
interlocutor we can put our grievance to and who can correct an error if there is one...We have told all social media that ... if you operate in Turkey you must comply with Turkish law” (Özbilgin and Burch 2013). After two years of blocking Youtube, the Turkish government succeeded in convincing Google to open up an office in Istanbul as well.
A couple of months later a draft bill that proposed amendments to the Internet law was prepared. Experts claimed that the proposed amendments to the Internet law would be a tool that legally backs censorship and “from now on be used for political reasons to block access to so-called damaging videos or to block access to leaked documents” (Akdeniz qtd. in Schleifer 2014). This omnious bill included several other amendments to various laws such as the Anti-Terror Law and the Social Security and the General Health Insurance Law (OSCE 2014, 3). The draft of the Internet law furthered grave concerns about freedom of expression and Internet freedom. Several NGOs and international bodies urged President Abdullah Gül not to sign the Internet law. Additionally, a number of NGOs such as Amnesty International and Turkish websites started online campaigns. Furthermore, several Turkish websites protested the draft law as well. Despite these outcries, Abdullah Gül announced on Twitter that he approved the Internet law. Following his approval, #unfollowabdullahgul campaign started on Twitter, which led Abdullah Gül’s lost his over 60.000 followers in hours (Al Jazeera 2014).
All Internet activities in Turkey are regulated through the Internet law following its coming into force with its publishing in the Turkish Official Gazette on 23rd of March 2007. The Internet law appointed The Telecommunications Communications Presidency (TIB) as the head to regulate Internet communications through screening of content and enforcing blocking orders proceeded by courts or public prosecutors. Akdeniz argues that these laws were born from the need to regulate content that involves child pornography, defamatory videos of Ataturk, Satanism (which also gives suicidal information) harmful content for children lead to the preparation of a new law regulating specifically Internet content (8). Before the Internet law came into being, Article 159 of Turkish Criminal Code was
considered sufficient for the regulation of the content on Internet (Akdeniz and Altıparmak 2008, 3) which states that: “Whoever overtly insults or vilifies the Turkish nation, the Republic, the Grand National Assembly, or the moral personality of the Government, the ministries or the military or security forces of the State or the moral personality of the judicial
23
authorities shall be punished by a term of imprisonment of one to six years” (TBMM: Turkish Criminal Code, 2004).
The new Internet law provides a detailed explanation of how to deal with Internet crimes committed by different actors such as content providers (Article 4), hosting providers (Article 5), ISPs (Article 6) and mass use providers involving Internet cafés (Article 7). Article 8 defines these blocking measures. The law foresees, that if there is “ sufficient suspicion” about the violation of the Internet law, the content will be blocked. The blocking decisions can be determined by penal courts, public prosecutors or the presidency (TIB). By referencing the crimes defined by Turkish Criminal Code 5237, the Internet law lists eight
types of content as criminal.5
● Encouraging suicide (Article 84) ● Sexual abuse of children (Article 83)
● Facilitation of abuse of drugs and chemical stimulants (Article 190) ● Supplying drugs that are dangerous to health (Article 194)
● Obscenity (Article 226)
● Providing place and platform for gambling (Article 228) ● Whoredom (Article 227)
● Crimes Against Atatürk (Law 5816).
Furthermore, the court can give blocking decisions regarding the violation of other laws, involving some private law rules listed below.
● Turkish Criminal Code related to anti-terrorism (Article 301) ● The Intellectual and Artistic Works (Law 5846)
● Denigrating religious values (Article 216)
● Crimes committed via press or broadcast (Article 218)
There are two contexts where the Presidency is given the authority to make blocking decisions. Firstly, if the content provider of the websites is located outside of the national jurisdiction of Turkey, the presidency can determine whether to ban the website within Turkey. Secondly, if the website involves content related to child abuse or obscenity, the presidency can decide to block the access to website. Only after the blocking occurs, can the
24
websites make an appeal to the courts for lifting the ban. According to unofficial statistics
provided by the website, www.engelliweb.com, 40.581 blocking-decisions have been made by courts, prosecutors, Yüksek Seçim Kurulu and TIB. Nearly 90 percent of the blocking decisions were given by TIB (engelliweb, 2014).
The amendment to Article 5 enhances the responsibilities of hosting providers by increasing the time requirement for data retention regarding user traffic. The time
requirement increased from 6 months- 2 years to 1 to 2 years. Furthermore, hosting providers are required to share this information when demanded by TIB without seeking the court order first. When hosting providers fail to comply with these requirements, they are required to pay fines between 10,000TL (€3,000) and 100,000TL ( €32,000). The amendment to Article 6 foresees that Access Providers should combat alternative methods for accessing the blocked websites. Access Providers, if they fail to comply with this, are required to pay a fine of 50.000 TL. Article 6A orders the establishment of the Association of Access Providers to be based in Ankara. This association will be composed of all ISPs, which operate in Turkey. To able to provide access in Turkey, all Access Providers are required to be a member of this association. Blocking orders from TIB will be forwarded to all ISPs through the association. Within one month of the establishment of the Association, all access providers were required to be a member. If not a member, access providers were forced to pay a fine of equal to one percent of the revenues of the previous year. The amendments in Article 9 contend that the individuals, who conceive that their privacy is violated, can apply directly to TIB. Following the blocking order delivered by TIB, the Association will ensure that access is blocked within 4 hours. While the blocking can occur on a URL basis, an Association judge can rule for blocking access to the website.
While protests and criticism against the Internet Law was growing, AKP officials released statements claiming that the amendments to the Internet law aimed to protect the privacy of individuals and not to apply censorship. In other words, it is argued that the governments’ authorization to block any website without a court order upon a complaint is concerned with the protection of privacy. However, as OSCE (Organization for Security and Co-operation in Europe) representative Mijatović contends that this article could lead to arbitrariness as any complaint can result in blocking of websites (OSCE 2014). The International Press Institute’s Senior Press Freedom Advisor Steven Ellies argues that:
25
“Drastically shortening the time for websites to respond to complaints and removing an independent review of decisions to block websites would likely lead to an abuse of the law by those keen to arbitrarily block access to damaging information posted online” (Today’s Zaman 2014). Additionally, EU officials perceived the Internet law as a step back from the progression of Turkey’s accession to the EU. Dutch MEP Marietje Schaake argued that the Internet Law violates EU rules by restricting freedom of expression online (Schaake 2014). Regardless of the raised concerns, public officials went on to claim that “no such thing as Internet censorship… [Turkey is] freer compared to many other countries and have freedom of press.” (Emphasis added in original Arınç qtd. in Agence Presse 2014).
Shortly after the approval of the Internet Law, and upon Turkish hacktivist group Redhack’s tweet sharing a link to pastebin that contained information about politicians, pastebin was officially banned (Radikal 2014). When trying to access the website, a warning saying that access was blocked as a preventive measure showed up. This block was followed by a wholesale Twitter ban, which created a worldwide reaction. After Erdoğan’s assertive statement of “Twitter, shmwitter; we’ll wipe them all off. I don’t care what the international community says.”(Tüfekçi 2014), Twitter was banned due to “violating privacy” and
“attacking persons” (Reporters without Borders 2014). Following BTK’s statement that the Twitter ban will be lifted upon withdrawing the “illegal content”, Twitter shared a blog post in which they announced that their Country Withheld Content tool will be used for the first time for Turkey (Gadde 2014). In this blog post Twitter also stated that they are not going to share any user details e.g. IP addresses or e-mails (ibid.).
Preserving assertive attitude towards Twitter, Erdoğan stated: “We are going to eradicate Twitter and its like. Yes, all of them. What will international circles say? That doesn’t concern me. They will see the power of the Turkish Republic.” (Reporters without Borders 2014). Referring to the leaks of videotapes that show corruption within the
government, Erdoğan criticized the people “who do not hesitate to spy on the most senior government officials” and who “threaten the security of the state.” (ibid.). According to Erdoğan, the Twitter ban “has nothing to do with freedoms. Freedom does not mean violating a person’s privacy. And sending state secrets to international addresses is not freedom
26
Twitter ban was still effective, YouTube was banned for the third time altogether. It was YouTube’s second ban for having content insulting to Atatürk.
2.7.GETTING AWAY FROM EU?
Following the EU’s announcement to start the official membership negotiations with Turkey, Turkey has put significant effort to align its regulatory and technical framework to enter to the EU. While in some areas the Turkish government showed less aptitude for making reforms, its overall performance was progressive and taken well by the international actors. Especially worth noting, the AKP unexpectedly instigated and pioneered accession talks between Turkey and the EU. The Europeanization of Turkey started with the reform-making process wherein Turkey aligned its legal and technical framework with the EU. It is possible to argue that this EU-incited reform-making process not only started
Europeanization but also contributed to Turkey’s democratization.
The fierce controversy about Turkey’s human rights violations’, which ensued from the Gezi Revolt, was even more heated with the approval of the Internet law. These instances raised doubt about the AKP’s true candidness with regard to Turkey’s EU bid. While these developments can be seen the AKP’s increasing authoritarian tendencies developed parallel with its increasing votes and lessening need for the EU candidacy as a political strategy to attract voters, this paper does not deal with the underlying reasons for this change of heart but rather focuses on Turkey’s change of direction regarding Internet regulation. Therefore, I will continue with the discussion with how the Internet law does not comply with the EU and how it affects the Europeanization of the Internet in Turkey.
The amendments in regards to ISPs are elaborated as Turkey’s “enlist [ment] of intermediaries to censor and surveil Internet users” (Frosio 2014). The alterations in the law pose a clear contrast with the responsibilities of intermediaries in the EU. As opposed to the EU’s “discursive rather than a directive” approach, the intermediaries are held liable for not only controlling the content deemed illegal but are also made responsible for taking necessary measures to prevent the circumvention around the ban. Furthermore, the state tightens the
27
control over ISPs by requiring them to be a member “state-controlled association” to be able to operate in Turkey (ibid). These associations further state control by ensuring that the rules are followed by ISPs. The associations force ISPs to censor content and impose fines when they refuse to filter content. When taking all these into account, ISPs are not liable but also vulnerable to the state’s manipulations. The reason why ISPs are not held liable in EU countries is to protect users’ privacy rights. In Turkey, ISPs are required to share user
information with TIB without obtaining a court order first. This also marks a strong diverging point from the EU. Especially considering the fact Turkey is criticized in the progress reports for not making passing laws, Turkey is becoming even further from alignment with the EU.
To continue with the filtering and censorship facilitated with the amendments, TIB has the power to exert filtering following a complaint filed against an impeachment of privacy rights, within four hours. Ironically, Turkey uses the discourse of the protection of privacy rights to legitimize censorship. However, facilitation of censorship also diverges from the Acquis as Turkey has already been criticized for violations of freedom of expression and media censorship. Worth noting, the wholesale ban of Twitter and YouTube is seen as a major violation of freedom of expression as these social media networks played a key role during the Gezi Revolt for communication, news-sharing and discussion. This discussion is reminiscent of the Snowden leaks and NSA surveillance, which instigated talks related to surveillance states and privacy rights. However, the difference in Turkish case is that surveillance is legalized and legitimized by the law. In conclusion, all things considered, it can be claimed that Turkey is not going towards to the EU but rather is making moves towards becoming a surveillance and censorship state.
CHAPTER 3: NATIONALIZATION OF THE INTERNET
This chapter analyzes the other path drawn for Turkey’s Internet regulation,
Nationalization. The chapter starts with a section explaining what the Nationalization of the Internet means and is followed by a discussion dealing with the Nationalization of the
