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Erdogan's troubles spill over the border [Cihan News Agency (Turkey)]
[April 10, 2014]

Erdogan's troubles spill over the border [Cihan News Agency (Turkey)]


(Cihan News Agency (Turkey) Via Acquire Media NewsEdge) ISTANBUL (CIHAN)- The Twitter and YouTube ban in Turkey confirmed the arbitrariness of justice and the suspension of the rule of law, because there was no court judgment ordering a complete shutdown on access to those social media sites. The ruling Justice and Development Party (AKP) government under strongman Prime Minister Recep Tayyip Erdogan did not even enforce the court ruling that had been won by lawyers representing Twitter. Hence the government's claim that Twitter had not complied with several court judgments asking for the removal of specific offensive content was defeated by Erdogan's own failure to enforce the court judgment that ordered the suspension of the ban. It was the Constitutional Court, in the end, that came out and saved the day by unanimously deciding that the ban was illegal. The government reluctantly had to implement the ruling, albeit with some delay, as Erdogan slammed the court for disregarding the national interest and protecting an American company.



Let's stop beating around the bush. The Erdogan government has no interest in sorting out this issue, or any other issue for that matter, through legal arguments. He is bullying Twitter and YouTube, just as he has been trying to do with practically every person, group or business in Turkey that has not yielded to his authoritarian rule. Even senior officials in the ruling party expressed their displeasure with the top court's decision on Twitter, as the pro-Erdogan media plastered pictures of top judges across their pages. Since Turkish society is vibrant, dynamic and diverse, with an aspiring young population and a flourishing middle class, Erdogan is frustrated to see that that he has failed to create a country in his own image. Despite the victory in the local elections, which gave him 43 percent support, he has to deal with the fact that the majority in Turkey did not agree with his policies or harsh, bitter rhetoric. He was hoping to top off the 50 percent of the vote he had scored in the 2011 elections, but he lost 7 percent despite a rise in the number of young voters.

One way or another, the law will catch up with Erdogan eventually, just as it has with others in the past. Therefore, sorting out today's seemingly intractable issues from a legal point of view will offer us guidelines on how events will unfold in Turkey. For one, the Turkish government will scare foreign investors who are sensitive about freedom of speech and press in a country where they are investing. Respect for the rule of law and trust in the home country's justice system are paramount for the security of investments. Secondly, since Twitter and YouTube are US companies, Erdogan's singling out of these companies and drawing a bull's eye on their back will irk the US administration, which is sensitive about its companies' reputation and investment portfolios. Therefore, Erdogan will be butting heads with US President Barack Obama, who is already feeling the heat from the US Congress, business lobbies and advocacy groups about freedom of speech and the right to free enterprise.


Erdogan may act with impunity at home for now, albeit temporarily, but he will not be able to stop the legal challenges altogether. What's more, if the legal issues are not sorted out here in Turkey, it will spill over to other countries and international platforms. I think Turkey's Constitutional Court has realized that danger and put a stop to the illegal Twitter ban. Thanks to the right to file individual petitions with the top court for violations of fundamental human rights, which was established with the 2010 public referendum, Turkey's Constitutional Court has positioned itself as the ultimate arbiter in the rule of law, basic rights and liberties. As such, it needs to keep its reputation and protect valuable relations with its interlocutors abroad, especially the European Court of Human Rights (ECtHR), whose judgments are binding. Turkey's top court knows that if it does not act as an arbiter in these violations through this new remedy offered to Turkish citizens, the complaints will move on to the Strasbourg-based ECtHR.

I think the ECtHR's final ruling on March 18, 2013 on the case of Yildirim vs Turkey, in which the applicant won the case against the Turkish government over the local court's order for the Telecommunications Directorate (TIB) to block access to Google Sites, was in the minds of the judges in the Constitutional Court ruling that announced the illegality of the ban on Twitter. In this case, the ECtHR ruled that the Turkish government had violated Article 10 of the European Convention on Human Rights (ECHR), which protects the right to freedom of expression. Recalling its earlier ruling in Times Newspapers Ltd v. the United Kingdom, the ECtHR said, "In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public's access to news and facilitating the dissemination of information generally." Likewise, the Strasbourg-based court ruled in Observer and Guardian v. the United Kingdom in November, 1991 that Article 10 guarantees not only the right to impart information but also the right of the public to receive it. When the issue involves the press, the court is more sensitive, because it recognizes that "news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest." Since all these rulings are also binding for Turkish courts and they should act as precedent and guidance for future cases, the Erdogan government is fighting a losing battle on legal grounds. Even if the government finds friendly judges and prosecutors to crack down on freedom of speech and press domestically, it will be reprimanded by the ECtHR when these cases land in Strasbourg.

The Yildirim case, which was about the collateral damage caused by the Internet block, was the first time the question of freedom of expression on Web 2.0-based platforms was put to test by the ECtHR. Its ruling is a landmark one and should serve as a guideline for future cases. The Court highlighted the devastating impact of a complete ban on access and labeled it a "collateral effect of a preventive measure adopted in the context of judicial proceedings." The Court ruled that the measure adopted by the government amounted to interference by a public authority in the applicant's right to freedom of expression, of which the freedom to receive and impart information and ideas is an integral part. The Court concluded that the interference resulting from the application of the Internet Law did not satisfy the foreseeability requirement under the Convention and did not afford the applicant the degree of protection to which he was entitled by the rule of law in a democratic society.

Not only has the Erdogan government violated ECtHR case law, but it also is in breach of a number of international obligations. For one, Turkey infringed upon the Council of Europe's (COE) declarations, resolutions and conventions on freedom of expression on the Internet. If any of these measures adopted by Erdogan's government are challenged at the ECtHR, I'm sure the court will ask the Turkish government to amend the legislation in line with the standards set out above. So far, it seems the Constitutional Court is doing its job and is not burdening the Strasbourg-based court. But if Erdogan puts pressure on the top court and attempts to prevent it from functioning, let's say by not enforcing the judgments, the ECtHR may be forced to intervene when a complaint is filed.

Now there is a more serious threat brewing in Turkey that targets private networks used by individual companies, especially the press. Internet servers and websites used by critical media in Turkey have been under sustained cyber attack since a couple of days before the local elections held on Sunday, and this has been going on until today. The cyber attack has allegedly been launched by circles close to or controlled by the Erdogan government and has targeted private networks used by individual companies. The whistleblower Twitter user @fuatavni claimed on Thursday that Turk Telekom, partially owned by the Treasury and controlled by businesspeople close to the government, has even asked Chinese telecom giant Huawei, a solution provider company that Turk Telekom has partnered with on occasions, to limit the Internet speed in Turkey and went ahead with limiting the bandwidth in spite of Chinese objections.

The Cihan news agency, which has become a well-known brand in Turkey by delivering election results quickly, was exposed to a severe cyber attack on election night. Cihan's subscriber web sites, which include national print and broadcast media, were also targeted in the attack. The web servers for Turkey's largest dailies, Zaman and Today's Zaman, as well as the critical liberal daily Taraf's website, were attacked, making pages inaccessible to readers from time to time. The critical Samanyolu News channel's Internet access was completely severed on Thursday, while malicious software generating a forged document was implanted into its network of computers. All these point to a pattern whereby the critical press has been targeted in a systematic campaign of sabotage against its infrastructure, thereby preventing the dissemination of information to its audience at home and abroad.

This is a perfect case in which the articles of the Convention on Cybercrime, which entered into force on July 1, 2004, have been violated. The convention deals with various types of offences in the sphere of cybercrime, which includes action directed against the confidentiality, integrity and availability of computer data and systems, computer-related forgery and fraud and content-related offences. Likewise, the 2005 Declaration of the Committee of Ministers of the CoE, the European Union's recommendation that was adopted by the European Parliament (EP) on March 26, 2009 and the United Nations Human Rights Committee's (UNHRC) July, 2011 comment on the International Covenant on Civil and Political Rights (ICCPR) all state that restrictions on the Internet must be limited and justified on sound legal grounds.

In today's highly interconnected information networks across national boundaries, placing undue restrictions on the Internet and dealing a blow to domestic communication infrastructure in order to disrupt the services of private companies may have serious repercussions abroad and give rise to claims that the Turkish government has breached its commitments. Even though Erdogan said he does not care what the international community might think about his restrictive moves on the Internet, he will have to face the bitter reality and confront growing criticism, resentment and even a backlash from Turkey's allies and partners.

ABDULLAH BOZKURT (Cihan/Today's Zaman) CIHAN (c) 2014 Cihan News Agency. All right reserved. Provided by Syndigate.info, an Albawaba.com company

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