Press Release on Twitter Detentions in Turkey
London, UK: 05 June 2013 (can be published on websites, including news websites, and audio-visual media)
Yaman Akdeniz (@cyberrights) & Kerem Altiparmak (@KeremALTIPARMAK)
According to the news coverage, at least 24 people detained on June 4 and June 5, 2013 over the messages posted on Twitter. Further examination of the news’ details is not possible at the moment due to the confidentiality of the investigations. Nevertheless, the large number of detainees held over the same allegation creates a cause of concern, and thereby, this statement is considered to be necessary.
1. A preliminary analysis reveals that the investigations are opened under the Article 214 (incitement to commit a crime) and Article 217 (incitement to commit a crime) of the Turkish Penal Code. Incitement to commit a crime, Article 214 - (1) A person openly inciting to commit a crime shall be sentenced with imprisonment of six months to five years. (2) A person who has a part of the public armed against another part, and incites them to kill each other shall be sentenced with imprisonment of fifteen to twenty four years. (3) Where the crime of incitement are committed, the inciting person shall be sentenced as the instigator the offenses. Incitement to disobey the law Article 217- (1) A person who openly incites the public to disobey the laws shall be sentenced to imprisonment of six months to two years or a judicial fine, if the incitement is suitable to distort public peace. Related provisions have not been used frequently to restrict the freedom of expression. However, this does not mean that the principles guided the implementation of the other provisions of the Turkish Penal Code related to freedom of expression will not be used for these provisions as well.
2. For this reason, it is very important to enforce initially European Convention on Human Rights and international human rights standardarts. 214 and 217 of the Turkish Penal Code. According to case law of European Court of Human Rights, for limiting speech, it should be either a hate speech or have a direct casual link with violence. Social media and especially Twitter where invitation to meeting and demonstration is made, political messages are given, statements, images and pictures prepared by own or reachable on media are shared cannot be limited as long as it does not reach to the limits of an apparent “inciting to violence”.
3. In the human right law, to accept occurrence of inciting to violence, a very high standard should be proved by public authorities. In this investigation, the owner of the statement, the addressee, the environment where it was made, the media by which it was delivered and the tone should be taken into consideration. In an environment where thousands of hundreds of people are demonstrating, interpreting that the messages shared in the social media and especially on Twitter have lead people to do things that they would not have done otherwise, is not only realistic, but can also be characterized as an abusive interpretation of the law.
4. When it comes to restrictions of freedom of expression, it is never enough to content with the freedom of expression of the people subject to investigation. Restriction of one person's freedom of expression will be affecting tens of thousands of people who are willing to express the same statement. This impact may be easily observed to run even deeper when it comes to the use of social media tools like Twitter. Known as “chilling effect” in the theory of freedom of expression, this condition emphasized as a factor violating freedom of expression in many European Court of Human Rights decrees. While only 24 people were taken into custody as of yet, the impact of this investigation did not remain limited to these 24 people; tens of thousands of social media users have experienced anxiety through the impact of this investigation. In a democratic regime where freedom of expression has to be preserved, such an influence may never be accepted.
5. Legislative, judicial and executive authorities utilising the power of state should never forget that freedom of speech is the backbone of any democracy and that their main duty is to guarantee this freedom. People in Turkey face new criminal provisions or implementations that restrict freedom of speech in each and every political problem that arises. Just one month ago, in an environment where the freedom of speech was claimed to be expanded through the fourth legislation package stipulated recently; it is observed that actually the Articles 214 and 217 –never mentioned within that package- were used to justify restriction of freedom of speech. As mentioned above, the only way to surmount this mistaken approach that has become a habit of the state is interpretation of the entire legislation in a manner compliant to human rights standards.
6. In line with the reasons explained above, using expressions, which were posted on social media with no direct causality connection to violence, for justification to investigations should be immediately stopped, and legal action should be taken against those who accessed the messages of these people through violation of privacy for the purpose of subjecting them to investigation.
7. In contrary to what the Prime Minister claimed, social media has become not a menace but one of the irreplaceable parts to democracy in our world. In this new world; if there is no social media, if there is no Twitter, then there is no democracy after all.