ABSTRACT
“The Draft of the Bill Regarding Amendments in the Press Law and Other Laws”, which is presented to the Grand National Assembly of Turkey on 10.01.2014, consists of new regulations regarding the inclusion of the news websites. The scope of “periodical publications” and the granting of the equal rights to the journalists who are carrying on their activities in the news websites, (as the journalists who are working at the printed media sector), are particularly mentioned. Aforementioned draft of the bill is capable of providing solutions to the issues arisen in the practice at the early stages. However, even though the draft bill can be considered as a positive improvement, it has not been enacted by the Grand National Assembly of Turkey and entered into force yet. Therefore, there are still several issues and difficulties in the practice. This article examines the provisions entered into force by mentioned draft bill, the regulations governing the news websites and the legal issues arising due to lack of regulations.
1. INTRODUCTION
Internet has become an essential media instrument for individuals in parallel with the developing technology, changing life style and new needs and habits of the people. Journalism has featured as one of the significant online services with spread of the internet. In this regard, online journalism has become one of the fast growing areas in providing online access to news publishing and the demand is thereby increased by internet users. The reasons for the popularity of the journalism in recent years can be listed as follows;
1) Easy to access to the news, no additional charges for the consumers to access thereto, easy and quick to follow up and share the current news.
2) Further, news items like “breaking news” has become much easier than before and even the most up-to-date news has become easily accessible for the readers. Due to online journalism, it is now possible to become aware of all the latest news through instant notifications received via devices with internet access, at any time of the day, whenever updated news have been published. Nowadays, frequent usage of online journalism indicates the necessity of specific regulations regarding on this field. Nevertheless, a lacuna in the Press Law prevents online journalist to take advantage of the benefits and rights provided by the press law for full legal protection. (Due to the reason that the news websites do not fall within the scope of the Press Law numbered 5953 (the “Press Law”); journalists who are working in this field, and the news websites owners cannot take advantages of the rights which has been granted to the journalists and newspaper owners who are working in the printed media;) Also, persons whose rights are already infringed may suffer due to the news published in the news websites because of the deficiencies in the legislation. Even though the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by means of such Publications (“the Law Numbered 5651”) has been enacted with the intention of fixing such deficiencies in law, more detailed regulations are needed in this field. Accordingly, the Draft Bill Regarding Amendments on the Press Law and other Laws (the “Draft Bill”), which includes the online journalism into the scope of the Press Law, has been prepared by the Republic of Turkey Prime Ministry General Directorate of Laws and Resolutions. It is aimed with this Draft Bill to make some amendments in the Press Law in order to fall the news websites therein and evaluate the news websites as periodical publications since they have similar characteristics therewith and implement the provisions of the Press Law regarding the periodical publications to the mentioned websites. In our article, regulations on the news websites, legal consequences of the evaluation of the news websites within the scope of the Law Numbered 5651 and numerous issues occurred in the practice due to the lack of specific regulations regarding the news websites shall be examined.
2. REGULATIONS REGARDING THE NEWS WEBSITES
2.1. Fundamental Legislations
The news websites fall under the Law 5651 and they will be examined within this scope since there is not any specific regulation on the news websites as of today. Besides, it is aimed to regulate news websites under the Press Law and the journalists who are working in the news websites under the Law on the Regulation of Relations Press Workers and Employer’s numbered 5953 (the “Press Labor Law”) by the Draft Bill which is planned to be enacted. Therefore, the legislations on the news websites required to be examined are: Law numbered 5651, Press Law, Press Labor Law and Draft Bill.
As mentioned above, news websites fall under the Law 5651. The most comprehensive regulation for news websites is to be found in the Draft Bill, which was proposed to the Grand National Assembly of Turkey on 10.01.2014. However, the Draft Bill has been rejected by the Grand National Assembly of Turkey. Article 1 of the Press Law has planned to be amended as “This Law includes the printing and publishing of printed works and publications of the news websites.” with Article 1 of the Draft Bill and, thus, it is aimed to regulate the news websites in under the Press Law. Rights and liabilities of journalists, who work on news agencies active on websites, are regulated in the Draft Bill which includes provisions regarding sanctions in case of breach of those rights.
Furthermore, the Draft Bill also addresses rights (and duties) to mainstream media organizations that have ancillary activities in website journalism. Yet all these are still pending, since the Draft Bill has not been passed through the parliament yet.
2.2. Intended Issues with the Draft Bill
Journalism is a demanding sector and a profession requiring a diligent and accurate proficiency/competence. The fundamental principles of journalism are: not to mislead, not to cheat and not to misdirection of the reader and not to breach personal rights under the right of spreading information. Exercising journalism through internet should only differ based on the place and not cause any negative differences between printed media in order not to injure the importance and essence of the profession. Therefore, it is important to make regulations by evaluating how news websites are defined, which websites shall be accepted as news websites.
As per Article 3 of the Draft Bill, the term of news websites have been specifically regulated with the amendment of Article 2 of the Press Law for the first time. With this amendment, the news website defined as periodical publication which is published as written, audio and visual contents form, and as news or comments on the internet. The Draft Bill did not define the term of the “internet environment” particularly; however, it prevented the contradiction which may arise in the future through making reference to the definition in the Law Numbered 5651.
First factor that needs to be examined by this regulation is that news websites are deemed as periodical publications. Considering news websites as a periodical publication is a proper way to distinguish news websites from personal websites and blogs. However, it is not possible to agree to the opinion stated in such definition that the websites which represent the written, audibly or visual contents qualified as comments are also deemed as the news websites. The most important issue when making regulations regarding news websites is keeping the balance between freedom of expression and protection of personal rights. Recognition of every website as a “news website” may result with many contents deemed to be considered as news and within the scope of the press legislation, and this may lead to confusions. Thus, the news websites must be deemed as periodical publications; and criteria defining news websites should be determined cautiously. Also, personal websites and blogs should be excluded from the scope of the Press Law.
3. RESPONSIBILITIES OF THE NEWS WEBSITES WITHIN THE SCOPE OF LAW NUMBERED 5651
In the current situation, if the content of news websites give rise to civil and criminal liability, the Law 5651 applies to determine the responsible persons. In the internet environment; hosting provider corresponds to the pressman and the publisher, and the content provider corresponds to the author of printed work. Details of the hosting provider and content provider have been determined under the Law numbered 5651. In this regard; content provider defined as real or legal entities producing, modifying and providing all kinds of information or data provided to the users on the internet; hosting service provider defined as real or legal entities providing and operating the systems hosting the services and contents thereon. Content provider is responsible for all the contents provided in the internet environment, however, hosting provider is not obliged to control or examine the content that it hosts for determining whether it is against law. With regard to responsibility regime, the content providers and hosting providers must be considered separately. News websites may be regarded as hosting providers or content providers, and in some cases they may be regarded as both hosting and content providers.. In the case that content provider is not stated in the news websites, news website shall be assumed to be both content provider and hosting provider. And it may also be said that, even the content provider is specified, the hosting provider is deemed to be an accomplice to the crime if the hosting provider broadcasts illegal news or content on purpose.
3.1. Irresponsibility of News Websites as a Hosting Provider for the Published Contents
In case the content provider is specified, the articles regulating the responsibilities of hosting provider should be applied for the determination of the news website’s responsibilities. 4th Civil Chamber of the Supreme Court of Cassation held in the case numbered 2012/944 and 2013/2132 and dated 11.02.2013 that under the Law 5651 the owner of news websites does not carry responsibility for the news that it hosts.
Legal entities or real persons are required to obtain an operation license in order to carry out activities in Turkey. As per Law 5651, hosting provider is not obliged to control the content which it is hosting. Liabilities of the hosting provider may be as: (i) removal of the unlawful content when it has been notified as per article 8 and 9 of Law numbered 5651, (ii) keeping the traffic information of the hosting provider for a period of time to be determined in the regulations which is not less than 1 year and not more than 2 years and ensuring accuracy, integrity and confidentiality thereof, (iii) delivery of the information and documents requested by the Presidency of Telecommunication and Communication (“PTC”) when it is demanded and take the measures required thereby. Hence, other than the liabilities arising from above mentioned responsibilities, there is no civil or criminal liability for the news website as to the content of the news only.
3.2. Being a Hosting Provider of News Websites
According to the Article 4 of the Law 5651, content provider is responsible for all contents that are available for the use on internet environment. Content provider carries civil and criminal responsibilities for all kind of contents of which is “produced, changed or provided” in this respect1 . In this respect, the news website may be held liable as a content provider for news available on the website if the content provider thereof is unknown.
In the Draft Bill, because the determination of the content provider of published news and placing the information of the content provider on the website is considered as a restriction of the freedom of speech, information of the content provider is not specified as the obligatory information which must be stated in the websites. This may result with the liability of the news website as hosting provider for news of which the content provider is unknown. Under the provision of the Draft Bill amending Article 7 of the Press Law, the news websites broadcasting on the internet shall carry out their activities in accordance with Article 7 of the Press Law, provisions specified in the Law numbered 5651 concerning liabilities of the content providers, and the regulations concerning hosting providers. It should be noted, however, it is not possible for news websites to track the hosted contents easily due to rapid changes of the contents thereof. Therefore, news websites should be considered as hosting provider rather than a content provider, and they must not be held liable based upon the content. And as mentioned above, the responsible persons must be stated clearly and explicitly by imposing an obligation of disclosure of the identifications.
3.3. Blocking the Access to the News Websites
The regulations on blocking the access to news websites must be regulated in a detailed and clear manner since it may cause arbitrary restrictions of freedom of press. Even though news websites are considered as hosting providers, because the service of news websites is considered as a public service, the reasons for blocking the access to websites, which have been regulated for other hosting providers, must not be applied for news websites. If there exists more reasons to block the access, the freedom of press and freedom of information of individuals would have been more restricted accordingly.
Article 8 of the Law numbered 5651, allows the withdrawal from broadcasting of any content which falls within the scope of the stated Article, when there is a reasonable doubt that crimes has been conducted as mentioned in the above Provision2 .
Persons, who claim violation of the right of privacy due to the content of the publication on the internet environment, may request blocking the access directly with an application to be made to the PTC in accordance with Article 9/A, added to the Law 5651 on the date of 06.02.2014. The claimant, who claims that his/her rights have been violated, shall notify the PTC, and PTC shall send this request to block access to the Access Providers Association. so that access can be blocked immediately but any case for no longer than 24 hours.
Under the above mentioned provision, which is added to the Law numbered 5651, in cases other than mentioned in Article 8, access to news may also be blocked in cases where there are violations of the personal rights. This amendment of the Law numbered 5651 is one of the most subversive regulations regarding the freedom of press and it must not be extended to the news websites when issuing regulations for in this context. In recent years, access to the news regarding public issues of great importance has been blocked through this way upon the request of related persons. At this point, the balance between the public welfare and personal rights must be redressed. Otherwise, by contending almost all news with ground of violation of the personal rights, access may be blocked in a very short notice and society could remain uninformed, especially for the major events, where there is a benefit for the society.
An extensive and contradictive regulation has been brought regarding blocking the access by provision of Article 8/A, which has been added to Law numbered 5651 on the date of 27.03.2015. As per this regulation: “Depending one or several of the following reasons; right to live and protection of the people’s security of life and property, protection of national security and public order, prevention of criminal intent or protection of general health upon the request of the judge or in cases where a delay is disadvantageous” the Prime ministry or related ministries, measures of removal of the content and/or blocking the access may be applied. Also, this is an adverse regulation due to its unclear content in the context of the freedom of press, and blocking the access to content of the news is inappropriate through these general reasons. In the light of the abovementioned explanations stated within the scope of Article 9/A, we are in the opinion that, in the future regulations, it would be appropriate to exclude the news websites from the scope of this provision.
The Draft Bill intends to bring an appropriate regulation and states that regulations in the Press Law regarding sanction of the interruption in the publication shall not be applied to the news websites. Moreover, the Draft Bill states that rights provided for the news websites shall be disregarded in the case of occurrence of one or more of the blocking the access grounds, which are specified in Article 8 of Law numbered 5651, or the revocation of the hosting provider’s license. Also, in our opinion, the sanction with respect to the blocking the access must be applied to news, which is published in the news websites, provided that the grounds stated in Article 8 of the Law numbered 5651 has occurred. Blocking the access based upon the obscure grounds such as violation of personal rights is against to the freedom of press. However, the most important point is the determination of whether the sufficient doubt has occurred for enumerated crimes in the article or not3 . Therefore, in the case of sufficient doubt exists; blocking the access sanction should be imposed as a last resort.
3.4. Data Storage Responsibility of the News Websites as a Hosting Provider
Responsibility of data storage of the news websites as a hosting provider is vulnerable to criticism. This issue, which is also called as keeping traffic information, gives rise to the liability of the media organizations due to massive data size through the consideration of the quantity of daily news. Data storage not only requires keeping the data but also providing the correctness and integrity of this information and ensuring the confidentiality thereof. If the hosting provider’s data storage responsibility had been reduced, freer environment would have been provided for the news websites.
With the amendment introduced to the Article 10 of the Press Law by the Article 8, news websites are obliged to keep the published news’ contents with ensuring their correctness and integrity for six (6) months and to submit this information to the demanding authority, if necessary. In addition to requiring to keep and submit such data to the competent authorities, the Draft Bill in cases where publication becomes a subject to investigation or prosecution proceedings, requires news websites to keep record of the publications that are subject to investigation or prosecution proceedings until the written notification is delivered by the component authority considering the closure of the investigation or prosecution. Even though the period of time as to the requirement of data storage has been shorten by this regulation as compared with the Law numbered 5651, taking into consideration the speed of internet, it should be shortened even more compared to the printed media in the prospective regulations regarding the data storage liabilities of news websites.
4. LEGAL ISSUES OF NEWS WEBSITES
4.1. Online Journalism Employees are not Deemed as Journalist
It has been observed that approximately 90.000 people working in the media organizations in various positions according to the Draft Bill and the Report of the Commission on European Union Harmonization and Committee on Justice. Roughly, 70.000 out of 90.000 people are working in the editorial department, which falls directly in the field of journalism.
Even though there is not much difference between the works of printed media members and internet media members, it may be said that the rights and status granted to these two groups significantly differ.
A person who shall be deemed a “journalist” is defined under the Press Labor Law. As per this article, those who are working in any kind of intellectual and artistic works in the journals published in Turkey and news and photography agencies, and are out of the scope of “Employee” defined in the Labor Law numbered 4857 and their employers are deemed as “journalist”. As it is clearly seen, employees of the news websites have not been included into the scope of this regulation and discrimination has been made between those persons who are providing the same services.
The most important result of the exclusion of the news website employees from the scope of the Press Labor Law is the inability to use the “Press Card” right that is granted to journalists in accordance with the Press Card Regulation published in the Official Gazette on 23.03.2001 numbered 24351. Only the press members who have the press card may benefit from the rights granted under the provision of this regulation. Press members can reach to the news events in a fast and easy way and deliver the news as to the events of public concern in the fastest way through the rights which have been granted. We are in the opinion that granting the press card right to the internet media members is one of the most significant regulations need to be made in order to implement the principle of equality and ensure that the public receives current news in the fastest way.
As per Article 4 of the Press Labor Law; employment agreements between journalists (in printed media) and their employers are required to be made in writing, and type of work, amount of salary and seniority of the journalist should be set out therein. As opposed to the printed media members protected by the law, internet media members can be wrongfully discharged without any compensation or can be employed with a low salary,. Therefore, it is both necessary and appropriate to extend the scope of the Press Law to include the employees of news websites.
4.2. Uncertainty of the Liable Persons in the News Websites
In the event that news published online infringe personal rights, determination of the liable person can be difficult since the news websites is not obliged to state information on identifications as per the current regulation. When the criminal or legal liability arises as a consequence of the published news in the news websites, content provider’s identity mostly cannot be determined, and determination of the liable person becomes disputable due to the reason that hosting provider has no liability for the content as per the Law numbered 5651.
4.2.1. Responsible Persons under the Press Law
With respect to the criminal liability under the Article 11 of the Press Law; the crime occurs at the time the illegal content is published on the news website, and the author of the content carries criminal liability in this regard. According to the relevant provisions of the law, when the author of the content cannot be determined or lacks legal capacity for criminal liability or cannot be tried by Turkish courts due to he/she is abroad or the punishment to be imposed does not influence another punishment previously imposed by the final judgment on the ground of other crimes previously committed; the authorized manager of the person in charge, such as responsible manager, editor-in-chief, executive director, editor, or press advisor shall be held responsible. However, if the publication is made despite the objection of the authorized person publisher shall be liable therefore. Legal liability is also regulated under Article 13 of the Press Law, stating that the author and the publisher and representative, if any, shall be held jointly and severally liable for the pecuniary and non-pecuniary damages arising out of periodical publications.
4.2.2. Liable Persons in the News Websites and the Required Regulations
The important aspect of the possible extension of the scope of the Press Law to include the news websites is the determination of the liable persons. As per the current regulation, liable persons specified under the Press Law are not declared on the news websites since there is requirement in this regard. According to Article 3 of the Law numbered 5651 titled as “Informing Obligation”; content, hosting and access providers are liable to provide their identity information on their own internet environments as being reachable by the users in compliance with the basis and procedures set out in the regulation. However, determination of authors’ identity and the real owner of the news websites as hosting providers are difficult in the internet environment, and this difficulty creates complicated problems in respect of the liability regime. In this respect, it is difficult to apply to the competent authorities for the person, whose rights are injured due to the news published in the news website, for compensation of damages in case that the content provider is not available or the news website’s owner is not known.
As per the regulations are intended to be made in Article 4 of the Press Law by Article 4 of the Draft Bill; names and addresses of the owners, the representative, if any, the responsible manager, company address of the news websites, and name and address of the provider are required to be stated in the news websites under the contact heading as being directly reachable by the users in the homepage. Under such regulation intended to be made; persons whose rights may be violated would be able to reach responsible persons easily. In this way, quality of the news to be made in the news websites shall improve, and fabricated news will be prevented.
4.3. Procedure of the Correction and Reply Declaration
Prior to the evaluation of the correction and reply topic, the freedom of press should be mentioned in this context. Freedom of press in generally defined as printing, publication and distribution of the news, thoughts, comments, analyses, and critics independently.4 In this respect, a tension may arise between personal rights and freedom of press. The people’s private life or secrets, pride and dignity may be breached whilst the press is performing its duties.5 In this regard, another issue which should be examined in our article is the procedure to be followed in case of violation of personal rights by the news published on the internet. Since news websites are currently subject to the Law numbered 5651, in order to compare this issue with the printed press, the Press Law and Law numbered 5651 should be examined separately.
4.3.1. Correction and Right of Reply as per the Press Law
The provisions in respect of correction and right of reply are regulated in Article 14 of the Press Law. In the mentioned provision, it has been explained that how this right shall be exercised. As per Article 14 of the Press Law; in case any publication which injures the reputation and honor of an individual or includes an inaccurate statement regarding any person, the responsible editor of the periodical, without making any additions or modifications, shall be obliged to publish a correction and reply declaration to be delivered by the injured party within 2 months following the publication which do neither include any element of crime nor contradict the interests of third parties protected by the law, within three days at the latest following the receipt of the correction and reply in daily periodicals; while in other periodicals, within the first issue to be published in three days after receipt of the correction and reply. The correction and reply shall be on the same page and column as the original offending article, and in the same font and format.
As it is seen from the article, firstly there should be an unlawful publication in order to exercise correction right. Criterions of “publication injuring the reputation” or “unfounded publication” have been used in order to determine the violation therein. The determination of whether such violation took place shall vary according to the specific circumstances of each case. The responsible manager of publication and authorized person who the responsible editor works with shall be liable for the publication of the correction and reply declarations and other sanctions related thereto. Article 18 of the Press Law also regulates the sanction to be implemented in the event of violation of Article 14. As per such article, heavy fines to be imposed for the noncompliance with the judge’s final decision regarding the publications of the correction and reply declarations have been regulated. In the second paragraph of article; the owner of the publication and the responsible editor and the authorized person who the responsible editor works with shall be jointly and severally liable for the payment of the heavy fines imposed against to the responsible editor and the authorized person who the responsible editor works with.
4.3.2. Blocking the Access and Removal of the Content within the Scope of the Law Numbered 5651
Due to the abovementioned reasons, news websites are currently subject to the Law numbered 5651, and the procedure regarding the exercise of the correction right must be determined as per the provisions thereof. In practice, with the method also called as “warn/remove”, the person who has been affected by the unfounded publication or whose personal rights have been violated has the opportunity to remove the information or the publication which can be reached by billions of people through the internet6 .
The issues regarding the hosting provider and the content provider and the liability regime thereof on internet environment have been examined above. The provisions on the removal of the content stated in news websites and the exercise of the right to reply have been regulated in Article 9 of the Law numbered 5651. According to the Article 9; any real person or legal entity and institution or authority, who claims that his personal rights are violated due to a content on the internet may apply by the warning method to the Content Provider, or to the Hosting Provider if the Content Provider may not be reached, and request the removal of such content from broadcast, or he may apply directly to the Judge of Court of Peace and request for blocking the access to the content. Requests of those who claim that their personal rights are violated by content of the publication on the internet shall be responded in 24 hours at the latest by content and/or hosting providers. Judge may order for blocking the access within the scope of this article in accordance with the requests of those who claim that their personal rights are violated by the content of the publication on the internet. The responsible person, who fails to comply with the order of the Judge of Court of Peace in a timely manner and in accordance with the conditions set forth in this Article 9, shall be sentenced to a punitive fine from 500 days to 3000 days.
5. CONCLUSION
News websites has become a big part of our lives with the developing technology, and it is an undeniable fact that news websites have been preferred more than the printed materials by the readers as it is easy to follow and access to the latest news. Therefore, deficiencies and gaps in the legislations considering the news websites must be regulated by making necessary regulations so as to protect the public’s right to demand accurate and honest news, give the same rights to the online newspaper journalists as their other colleague’s and redress the balance between the freedom of the press and personal rights. As explained above in detail, through the enactment of these intended regulations in the Draft Bill; both personal rights of news websites journalists and personal rights of the individuals whose personal rights have been violated by the published news in the internet shall be protected by extending the Press Law to include news websites and the Press Labor Law to include news website journalists. With this regard, we are in the opinion that the Draft Bill shall be a positive development for the online journalism.
BIBLIOGRAPHY
10.01.2014 tarihinde Türkiye Büyük Millet Meclisi’ne sunulan Basın Kanunu ve Bazı Kanunlarda Değişiklik Yapılmasına İlişkin Kanun Tasarısı Taslağı.
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FOOTNOTE
1 Mehmet Bedii Kaya, Teknik ve Hukuki Boyutlarıyla İnternete Erişimin Engellenmesi, (İstanbul: XII Levha, 2010).
2 Enumerated crimes in the article; Regulated in the Turkish Criminal Code; Encouragement and incitement of suicide, Sexual abuse of children, Facilitating the use of drugs or stimulants, Supplying the hazardous substances for health, Obscenity, Prostitution, Providing a place and possibility for gambling and The crimes set forth in the Law no 5816 and dated 25/7/1951 on the Crimes Committed against Atatürk. Madde kapsamında sayılan suçlar; Türk Ceza Kanunu’nda yer alan; intihara yönlendirme, çocukların cinsel istismarı, uyuşturucu veya uyarıcı madde kullanılmasını kolaylaştırma, sağlık için tehlikeli madde temini, müstehcenlik, fuhuş, kumar oynanması için yer ve imkân sağlama ile Atatürk Aleyhine İşlenen Suçlar Hakkında Kanunda yer alan suçlardan bir veya daha fazlası olarak düzenlenmiştir.
3 Volkan Sırabaşı, İnternet ve Radyo - Televizyon Aracılığıyla Kişilik Haklarına Tecavüz İnternet Hukuku, (Ankara: Adalet, 2007).
4 Remzi Balkanlı, Mukayeseli Basın ve Propaganda, (Ankara: Resimli Posta Matbaası, 1961).
5 Abdullah Güzel, Cevap ve Düzeltme Hakkı, (Ankara: Adalet, 2010).
6 Coşkun ONGUN, “Medya Yayınlarına Karşı Cevap ve Düzeltme Hakkı (Tekzip)”, İstanbul Barosu Dergisi, (2012).
