A. Introduction
Recently, there has been much discussion about the legal aspects of the general access restriction to Instagram, which has raised questions in the minds of many. Is the Information and Communication Technologies Authority (BTK) authorized to make such a decision? If so, what is the legal basis of this authority, and is the decision in accordance with the principle of proportionality? In this article, we will examine the access restriction decision imposed on Instagram by BTK on 02/08/2024, the legal aspects of this decision, and whether BTK has the authority to make such a decision within its jurisdiction.
B. Why Did the Information and Communication Technologies Authority (BTK) Decide to Block Access to Instagram?
The decision by the Information and Communication Technologies Authority (BTK) dated 02/08/2024, with reference number 490.05.01.2024.-608903, to block access to Instagram has not been published on the official website of the Authority or anywhere else. However, in a press statement, it was noted that the access restriction was due to the publication of content on Instagram by users that falls under catalog crimes.
C. Which Crimes Could Justify an Access Block (Catalog Crimes)?
The Law No. 5651 on the Regulation of Publications Made on the Internet and Combating Crimes Committed Through These Publications regulates the principles and procedures for combating certain crimes committed in the online environment through content, hosting, and access providers. Article 8 of this Law lists the crimes (catalog crimes) that could lead to a decision to block access. These crimes include:
- Article 84 of the Turkish Penal Code No. 5237: Inciting suicide
- Article 103 (first paragraph): Sexual exploitation of children
- Article 190: Facilitating the use of narcotic or stimulant substances
- Article 194: Supplying dangerous substances for health
- Article 226: Obscenity
- Article 227: Prostitution
- Article 228: Providing facilities for gambling
Additionally, crimes under the Law No. 5816 on Crimes Committed Against Atatürk, Law No. 7258 on Betting and Gambling in Sports Events, and Law No. 2937 on the National Intelligence Organization are also included.
D. Does the President of the Information and Communication Technologies Authority Have the Authority to Block Access, and What is the Legal Basis for This?
As previously mentioned, Article 8 of Law No. 5651 lists certain crimes and allows for a decision to block access to content if these crimes are committed through online publications. The second paragraph states that the decision to block access during the investigation phase must be made by a judge, while during the prosecution phase, the decision must be made by a court. The fourth paragraph grants the President of the Information and Communication Technologies Authority the authority to block access to content ex officio.
The provision is as follows:
“If the content constitutes one of the crimes mentioned in the first paragraph, the decision to remove the content or block access shall be made by the President ex officio. This decision is communicated to the relevant content, hosting, and access providers to be implemented.”
Additionally, under Article 8/A, the President may also decide to block access in certain situations, as outlined below:
- In urgent cases where there is a need to protect life, personal safety, or property.
- In urgent cases where national security, public order, prevention of crime, or public health concerns arise.
- At the request of the Presidency or relevant ministries regarding national security, public order, prevention of crime, or public health.
It is important to note that if the President decides to block access at the request of the Presidency or relevant ministries, the decision must be submitted to a peace judge for approval within 24 hours. The judge will issue a decision within 48 hours; otherwise, the decision will be automatically lifted.
E. The Constitutional Court’s Approach to Freedom of Communication, Press Freedom, and Freedom of Expression
The Constitutional Court, in its decision 2014/151, which resulted in the annulment of the 16th paragraph of Article 8 of Law No. 5651, made an evaluation regarding the protection of freedom of expression. A part of this evaluation is as follows:
“Freedom of expression, in order to fulfill its societal and individual functions, must include not only the ‘news’ and ‘ideas’ that are viewed positively, correctly, or harmlessly by society and the state, but also those that are considered negative, wrong, or disturbing by the state or a part of the public. This freedom is the foundation of pluralism, tolerance, and open-mindedness, and without it, ‘democratic society’ cannot exist. The Internet has become an invaluable space for the exercise of basic rights and freedoms, especially freedom of expression, in modern democracies. The Internet’s role in accessing information, expressing and sharing thoughts, and spreading them has made it one of the most effective and widespread means of communication today. Therefore, any regulation or application regarding the Internet, which is a space for expressing thoughts and acquiring information, must be handled with utmost care by the state and administrative authorities.”
In Turkey, the Telecommunications Authority (TİB), which is responsible for overseeing communication through telecommunication, was created to centralize the monitoring and detection of communications. Under Law No. 5651, TİB is responsible for the implementation of access-blocking decisions issued by judges, courts, and public prosecutors. Moreover, TİB has the authority to block access to specific content hosted in Turkey or abroad, concerning the crimes listed in Article 8 of the Law. TİB also has the authority to set minimum standards for the software and hardware used for filtering, blocking, and monitoring internet content.
F. Conclusion
Both Article 8 and Article 8/A of Law No. 5651 focus on content restrictions or blocking decisions made regarding specific “content.” However, an important section to consider is Article 8, paragraph 17, which states:
“Decisions to block access under the second, fourth, and fourteenth paragraphs of this article are implemented by blocking access to the specific content, section, or page (e.g., URL). However, if blocking access to the specific content is technically impossible or if blocking the content does not prevent the violation, a decision to block access to the entire website may be issued.”
This statement is also repeated in Article 8/A for cases where urgent access-blocking decisions are made.
The President’s authority allows for blocking access to specific content (e.g., a post on Instagram) related to the violation. However, if blocking access to the specific content is not possible, a decision can be made to block access to the entire website.
Thus, the access restriction imposed on Instagram appears to be a broad decision to block the entire platform, rather than a targeted restriction on specific content. Since the details of the decision have not been published yet, we cannot conduct a thorough evaluation. Once the decision is made public, it will become clear what specific content led to the access restriction.
Attorney Yalçın TORUN
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