ABSTRACT
The concept of freedom of expression is one of the most important issues being discussed lately, in part because people are able to share their ideas and opinions with large audiences via the internet and social media.
I. INTRODUCTION
It is not surprising that the internet has turned into a legal topic because it is becoming an increasingly significant part of our lives and permeates every element of daily life. Apart from being subject to legal regulations in many different areas, this article evaluates the concept of freedom of expression on the internet and the conditions for its limitation, the freedom of speech and its relationship to the right to access the internet in light of judgments made by the European Court of Human Rights within the framework of Article 10 of the European Convention on Human Rights, which includes provisions on freedom of expression. In this regard, the idea of the right of access to the Internet is mentioned, as well as the legal viewpoint from which the Internet and the right of access to the Internet are seen globally, and the general approaches of international organizations such as the United Nations and the European Parliament are explained. Additionally, it addresses the offense of disseminating misleading information to the public, which is a significant and topical regulation associated with freedom of expression on the internet in our country.
II. ACCESS TO THE INTERNET
Internet, which has become the most frequently relied upon resource for modern individuals in various areas such as shopping, education, healthcare, and others, can be described as an indispensable technology in today’s world. Given its fundamental presence in every aspect of life, there are many aspects of internet access that need to be evaluated within the framework of law. The first examples that come to mind in this regard are issues like whether or not internet access can be viewed as a human right and how the scope and content of this right should be determined.
A. Right to Access the Internet
In 2000, Estonia made history by recognizing internet access as a human right1. The United Nations2, on the other hand, first defined internet access as a fundamental human right in a report published in 2011. In this report, the UN not only considered the internet as a tool for freedom of expression but also addressed two categories: “access to content” and “access to the necessary physical infrastructure for internet access.” Although access to content is described as a right derived from the Universal Declaration of Human Rights, the report highlighted that the internet, which is crucial for freedom of expression, is subject to arbitrary restrictions imposed by states. The report also touched upon issues related to intellectual property rights and the protection of personal data.
In another report published by the United Nations in 2016, the importance of access to the internet as a human right was emphasized, and it was stated that blocking access to the internet would constitute a violation of human rights. The report highlighted the need to protect the rights that individuals have offline also in the online realm3.
B. Blocking Access to the Internet
The European Court of Human Rights (“ECtHR”, “the Court”), considers the complete blocking of access to websites as a violation of freedom of expression. Therefore, when access to websites is to be blocked, it is emphasized that an effective examination should be conducted to ensure that the legal framework for such blocking is clearly defined without any arbitrary measures.
According to the criterion used by the European Court of Human Rights, the benefit to be gained from blocking access to a website should be greater and necessary in relation to the negative impact it would have on the freedom of expression of other users who are not directly involved in the case.
The European Court of Human Rights emphasized in the case of Cengiz et al. v. Turkey that the closure of a website significantly restricts the rights of internet users. It highlighted that access to websites can only be restricted after a thorough examination and if deemed necessary for maintaining social order4.
In a different ruling, ECtHR examined whether the previous ban on online broadcasting that encourages attendance at public events without permission violated Article 10 of the European Convention on Human Rights (“ECHR”, “The Convention”), which governs freedom of expression. The Court deemed the suspension of the applicant’s account, who invited participants to the event through internet broadcasts, as disproportionate. Furthermore, the court characterized Russia’s legal regulation enabling the blocking of internet access as a violation of Article 10 of the Convention, as it grants extensive powers to judicial authorities5.
The European Court of Human Rights, in the case of Vladimir Kharitonov v. Russia, emphasized with a new precedent that blocking access to a website would result in a violation of freedom of expression. Russian administrative authorities blocked access to a news-sharing website, citing as justification for this decision the blocking of another website that featured drug-related news and used the same IP address because it was based on the same network hosting service as the news website. However, the Court determined that this sanction violated the freedom of expression of site administrator Kharitonov6. This decision is also significant in terms of the European Court of Human Rights taking a stance towards ensuring freedom of expression in the context of new media. With this ruling, the ECtHR called on countries, including Russia, that have not yet implemented legal regulations specifically addressing the new media environment to take legal measures in this regard.
In the 2012 case of Ahmet Yıldırım v. Turkey, the European Court of Human Rights delivered its first judgment regarding freedom of expression in the new media environment. The court stated that the challenges posed by the new media environment cannot be effectively regulated by laws designed for the physical world. It has consistently maintained this viewpoint in subsequent decisions.
III. FREEDOM OF EXPRESSION
Freedom of expression is one of the fundamental rights and freedoms protected by Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights. Freedom of expression, in its simplest definition, refers to an individual’s ability to freely access thoughts and information, express, defend, and disseminate their acquired thoughts through various means, either individually or collectively. Every person is the subject of this right, and any restriction solely based on an individual’s personality is considered an interference. Therefore, all forms of expression are protected within the scope of freedom of expression, without any content-based limitations. Expressions of political, artistic, academic, or commercial nature, among others, are recognized as falling within the realm of freedom of expression.
The Court has stated that freedom of expression constitutes one of the essential foundations of a democratic society and that it applies not only to harmless information or ideas but also to offensive, shocking, or disturbing information and ideas for a section of society7. As a result, it is important to avoid arbitrariness when restricting the right to freedom of expression, which is a fundamental human right, and to explain the legal justification for such restrictions in a way that preserves the spirit of the right.
However, it is acknowledged that in certain cases, certain expressions may not be considered within the scope of protection of freedom of expression. It is generally accepted that expressions promoting fascism, racism, discrimination, war propaganda, or hate speech are not protected under the right to freedom of expression8. It is recognized that hate speech can incite violence against victims or cause harm to individuals targeted by such expressions. In addition to this, it is important to determine the boundary between hate speech and expressions of strong criticism.
Although the European Court of Human Rights (ECtHR) does not explicitly exclude hate speech from the scope of freedom of expression, it takes it into consideration when it comes to the limitation of this right. In this regard, the ECtHR has sometimes characterized such expressions as an abuse of rights under Article 17 of the Convention and, at other times, assessed them under Article 10, justifying interference with freedom of expression. Taking measures against hate speech and providing a protective system for individuals who are victims of such speech is considered among the obligations of states arising from international texts, especially decisions of the Council of Europe’s Committee of Ministers. The ECtHR referred to Article 179, which addresses the abuse of rights, for the first time in this context in 2003, interpreting actions that aim to spread violence or hatred, employ illegal or undemocratic methods, incite violence, seek to undermine the democratic and pluralistic political system, or target racism or the elimination of others’ rights and freedoms, as an abuse of rights under Article 17. Therefore, the ECtHR excludes actions that constitute an abuse of the rights and freedoms enshrined in the European Convention on Human Rights from its protection.
Freedom of expression is protected at different levels depending on the nature of the expression and its addressee. For instance, in academia, it is argued that criticisms directed at public figures should be protected within a broader framework of freedom of expression, while criticisms aimed at ordinary citizens and judicial bodies should be protected within a narrower range.
The protection provided to freedom of expression encompasses not only the content, but also the different forms and means through which information and ideas are expressed, communicated, and accessed. Therefore, expression can be conveyed through any medium or in any form of content. The concept of freedom of expression also includes the negative aspect of the right to remain silent.
Since the language used to convey expression is an integral part of this freedom, any restriction or sanction that prevents expression in any language is considered a violation of freedom of expression10.
A. Freedom of Expression on the Internet
Considering the significant role of the internet in our lives, which has become indispensable, it is possible to say that it is affected by interventions on freedom of expression.
The European Court of Human Rights has taken into account the widespread use of the internet and, due to the ease, affordability, speed, and wide dissemination of thoughts in the online environment compared to printed publications, it has interpreted Article 10, paragraph 1 of the European Convention on Human Rights broadly, stating that the internet is also within the scope of protection for freedom of expression.
Another important issue that has emerged in recent years in the context of the internet is social media platforms. These platforms provide opportunities for individual participation in content creation, publishing, and commenting, and they are transparent environments for mutual communication. Social media has become an influential platform where users from around the world can engage in discussions, share messages, information, criticism, sales, and advertisements. Therefore, it is emphasized that states should exercise caution in their legal regulations concerning the internet and social media, as these areas require sensitivity.
Taking into consideration the significant capacity of storing and transmitting vast amounts of information, the increased access to news for the public, and the facilitation of information dissemination, the European Court of Human Rights views the internet as a unique domain for the exercise of freedom of expression. The Court, in the case of Ashby Donald v. France, emphasized that its stance on this matter also includes the aspect of making profits through the internet11.
When it comes to certain content found on the internet, individuals who are the subject of such content require greater protection compared to ordinary individuals. Therefore, journalists, who are among the main content creators in the new media, also have a duty and responsibility to protect individual rights. While it may be acceptable for journalists to be convicted based on their news reporting, the European Court of Human Rights also emphasizes the need for the judgments to be proportionate, which is another requirement stemming from the Court’s case law. This is because journalists often include politicians, government officials, or individuals who have gained fame in various fields in their content, and their sharing reaches wide audiences and the public eye to a large extent.
B. The Relationship Between the Right to Access the Internet and the Right to Freedom of Expression
According to the established case law of the European Court of Human Rights, restricting the internet not only limits freedom of expression but also restricts people’s right to access information. Measures taken to restrict internet access should be compatible with human rights and predictable for individuals. In the Court’s judgment in the case of Ahmet Yıldırım v. Turkey, it was stated that member states should protect the internet within the scope of freedom of expression in their constitutions and ensure unrestricted access to the internet12.
While some states surround digital communication channels with security walls or resort to internet shutdowns in response to mass street protests, countries such as Iran, China, and Vietnam are striving to develop systems that control access to digital information. Restrictions imposed on the right to access the internet, like these examples, are recognized as interference with freedom of expression protected by international treaties.
IV. CRITERIA OF THE EUROPEAN COURT OF HUMAN RIGHTS REGARDING LIMITATIONS ON FREEDOM OF EXPRESSION
The European Court of Human Rights examines whether a limitation is imposed on freedom of expression as regulated in Article 10 of the European Convention on Human Rights in the cases brought before it. It is acknowledged that the fundamental condition of the limitation is the requirement set forth in paragraph 2 of the same article, which is the existence of a legal basis. Being determined by law implies predictability and accessibility of laws. Citizens should be able to easily access laws and foresee the consequences of their actions. In other words, it refers not only to laws that have been enacted through proper procedures but also to rules that are general, abstract, and permanent and which society is required to comply with. The Court has not deemed it sufficient for the limitation to be established solely by law; it has also required it to be legally predictable. When evaluating the rules related to the limitation, the Court emphasizes that it depends on the content of the relevant text, the nature and scope of the area covered, and the number of individuals it encompasses.
The second criterion is that the imposed limitation must be in line with the requirements of a democratic society. In order to determine whether the interference with freedom of expression constitutes necessary measures in a democratic society, national courts must first apply the principle of proportionality, which means that the aim and the means used to achieve that aim must be proportionate.
The Court has stated that for the interference to be considered necessary, there must be an urgent social need, and furthermore, the limitation must serve a legitimate purpose. The restriction of freedom of expression in pursuit of the legitimate aim must be proportionate. It is not considered legitimate if the limitation is based on reasons other than those listed in Article 10(2) of the Convention. The ECtHR determines in each specific dispute whether the interference is based on a legitimate purpose. The legitimate aims mentioned in Article 10(2) of the ECHR include national security, territorial integrity and public safety, the preservation of public order, the prevention of crime, the protection of health or morals, the protection of the reputation and rights of others, the prevention of the disclosure of confidential information, or the maintenance of the authority and impartiality of the judiciary. It is acknowledged that restrictions on freedom of expression will not constitute a violation if they meet these criteria.
V. THE ROLE OF STATES AND INTERNATIONAL ORGANIZATIONS
The United Nations has also listed what states should do in its reports on the right to access the Internet. It has emphasized the need for states to make the internet accessible and affordable for all segments of society, with developed countries supporting universal access as a form of assistance to developing nations. The reports also stress the importance of efforts to enhance internet literacy within society.
In addition, net neutrality also holds an important place in this context. Net neutrality refers to the principle that all internet traffic should be treated equally without discrimination. Although the internet is an open space susceptible to control by states, the key point in the net neutrality debate is that the internet should be neutral for individuals. Especially since the 2000s, this concept has been widely discussed in the United States. When states fail to legislate on net neutrality, content providers may engage in discriminatory practices, which would hinder net neutrality. If internet service providers engage in discrimination based on content, it would also restrict the access rights necessary for democratic discourse and public space. This concept is directly related to freedom of expression. Internet users often face direct and unnoticed censorship, which violates freedom of expression in various aspects, such as accessing information and disseminating ideas.
In terms of net neutrality, the Netherlands has secured its place in history as the first state in Europe to enact legislation on the subject13. In 2015, the Council of Europe also published a directive containing provisions on net neutrality. This directive aims to establish common rules to ensure equal and non-discriminatory treatment of traffic. Users should have the right to access information and content through the internet, distribute them, and use them without discrimination. However, Internet service providers are allowed to implement reasonable, transparent, non-discriminatory measures that are not based on commercial considerations14. The Declaration of the Committee of Ministers of the Council of Europe dated September 2010 emphasized that internet users should have the maximum possible internet access and that measures related to network management should be proportionate, appropriate, and free from discrimination15. It was also stated that there should be adequate avenues to challenge network management decisions and seek compensation.
VI. ANTI-DISINFORMATION LAW AND ITS INNOVATIONS
The Press Law and Amendments to Certain Laws, also known as the anti-disinformation law, which has been presented to the Turkish Grand National Assembly, was published in the Official Gazette with number 31987 on October 18, 2022, and went into effect. With this regulation, the offense of “public dissemination of misleading information” has been added to Article 217 of the Turkish Penal Code (“TPC”) numbered 5237.
Disinformation can be defined as the spread of false information, regardless of the accuracy of the facts, with the intention to influence people’s emotions and thoughts, leading to the widespread dissemination of false information to the masses. When considering the risks of disinformation, it is evident that the advantages provided by social media and the internet make it easier to create fear and panic among the public, and there is a risk of many individuals being influenced by false information and manipulations.
The effectiveness and power that the internet has gained in terms of generating and disseminating information both facilitate public access to information and, at the same time, open the door to its misuse. In other words, there is a need to differentiate between the truth and falsehood of the information published and accumulated in the online environment.
The rapid flow of information that has emerged with the proliferation of social media has led to the concept of an “infodemic,” described by the World Health Organization, which can be considered as an epidemic of misinformation. The speed of misinformation dissemination can be attributed to the easy accessibility of information on social platforms and the tendency of social media users to provide instant and careless reactions to the information they encounter16.
Various methods and motivations exist for the production of false news. One of the primary motivations is the desire to increase user engagement on personal social media accounts, often driven by commercial and political purposes. In terms of methods, it can be exemplified by distorting or manipulating accurate information to gain attention.
The aim of the newly enacted law is to introduce sanctions regarding the dissemination of false news content on the internet and social media platforms. The objective is to facilitate access to accurate information and prevent the spread of incorrect information among the public.
When looking at the requirements stipulated in the law for the offense of publicly disseminating misleading information, the first requirement is the intention to create fear, worry, and panic among the public through the sharing of such information. Secondly, there is a limitation in terms of the subject matter, stating that information related to the country’s internal and external security, public order, and general health will be considered within the scope of this offense. Another requirement is the public dissemination of content that is likely to disrupt public peace. The aggravated form of the offense is regulated when the perpetrator commits the crime by concealing their true identity or as part of an organization’s activities.
In this context, in the present day where the internet and social media platforms are widely prevalent, the aim of the law is to combat disinformation that threatens every user. Measures can be taken to ensure the accuracy of information disseminated on the internet and to apply sanctions against those who share content with the intention of causing fear, worry, and panic among the public. These measures are intended to protect individuals from the dangers of misinformation in the online environment.
When examining the ratio decidendi, emphasis is placed on the fact that freedom of thought and expression is one of the essential requirements of a democratic society. The importance of pluralism, tolerance, and open-mindedness in individuals’ self-devel-opment and, consequently, the progress of society is mentioned, highlighting that freedom of expression constitutes the foundation of these values. The popularity of digital platforms has increased as a result of technological advancements and the increasing use of the internet. As a result, information is shared faster than it ever has, and it takes less time for it to go through the filters of critical thought and analysis. The sense of security provided by the anonymous environment has significantly accelerated the proliferation of false, misleading, or manipulative content. Therefore, there is a need to take measures to ensure the security of news or information and to facilitate the democratic clash or competition of free and original ideas. The provision explains that the regulation is designed to criminalize the public dissemination of false information that is intended solely to cause fear, worry, or panic among the public and that is detrimental to the country’s inter - nal and external security, public order, and general health. In other words, the essence of the introduced regulation is to safeguard the needs of a democratic society and support the progress of society.
VII. CONCLUSION
With the increasing use of the internet in today’s world and its significance in our lives, interventions targeting thoughts and expressions in the online environment have become problematic. Internet access is regarded as a fundamental right since it is recognized as an extension and result of the right to free expression. The European Court of Human Rights has rigorously examined interference with freedom of expression, as stipulated in Article 10 of the European Convention on Human Rights, and has established particular standards in this regard. The Court has emphasized in numerous decisions that restricting internet access in itself constitutes a violation of freedom of expression. It has stated that states should not block access to the internet and that adequate regulations regarding the internet should be in place. Furthermore, the intervention should be prescribed by law, pursue a legitimate aim, be necessary in a democratic society, and be proportionate. After assessing the compliance of thoughts and expressions conveyed over the internet with the mentioned criteria, a determination can be made regarding the existence of a violation.
BIBLIOGRAPHY
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FOOTNOTE
1 The Economist, “How did Estonia Became A Leader in Technology?” (31.07.2013). https://www.economist.com/the-economist-explains/2013/07/30/how-did-estonia-become-a-leader-in-technology (Date Accessed: 05.04.2023).
2 Frank La Rue, (2011). Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf. (Date Accessed: 01.05.2023).
3 The promotion, protection and enjoyment of human rights on the Internet. https://www.article19.org/data/files/Internet_Statement_Adopted.pdf (Date Accessed: 01.05.2023).
4 ECtHR Cengiz and Others v. Turkey 48226/10, 1 December 2015.
5 ECtHR Kablis v. Russia 48310/16, 30 April 2019.
6 ECtHR Kharitonov v. Russia 10795/14, 23 June 2020.
7 ECtHR Handyside v the UK, App. no. 5493/72, 7 December 1976, para. 49.
8 Bülent Tanör/ Necmi Yüzbaşıoğlu, 1982 Anayasası’na Göre Türk Anayasa Hukuku, Beta Yay., Istanbul 2006, p. 159.
9 ECtHR, Garaudy/ France, Appl. No: 65831/01, 24.06.2003.
10 ECtHR, Eğitim ve Bilim Emekçileri Sendikası/ Turkey, Appl. No: 20641/05, 25.09.2012, § 73.
11 ECtHR, Ashby Donald and Others v. France, App. no. 36769/08, 10.01.2013.
12 ECtHR Ahmet Yıldırım v Turkey 3111/10 18 December 2012.
13 Ot Van Daalen, Translations of key Dutch internet freedom provisions, 2011. https://www.bitsoffreedom.nl/2011/06/27/translations-of-key-dutch-internet-freedom-provisions/ (Date Accessed: 07.04.2023).
14 Regulation (Eu) 2015/2120 of The European Parliament and of The Council.
15 Declaration of the Committee of Ministers on network neutrality.
16 Emrah Öztürk, “Dezenformasyon Yasası Ekseninde İnternet Paylaşımlarının Etki ve Sınırları”, Yeni Medya Dergisi, Vol: 13, 2022, p. 501.
