The Turkish Internet Law provides the opportunity for Web site owners to exercise
their right of reply against a content ban. However, this right is usually given after the
site has been already blocked. There is no guaranteed right of reply to Web site owners
whose content has been banned for a reason other than the ones listed in the Internet
Law.
One of the main concerns with court decisions on Internet cases is the lack of proportionality. When the court considers certain content illegal, it orders a complete ban
on the Web site hosting the content, instead of only blocking the particular material.
Typically, the rulings of the Criminal Peace Court only cite the relevant legal provisions on which they are grounded and the final court order. This procedure does not
provide the accused with the rationale behind the decisions, nor does it provide the
right to defend against the charges. In addition, the time for submitting the appeal is
very short, being only seven days.
Generally, court rulings in Turkey remain hidden from the public eye. The Turkish
Attorneys Law does not provide guarantees for publicity of court decisions without
regard to the particular type of dispute. Instead, this law restricts the right to make
a copy of a court decision, which for privacy concerns remains available only to the
party’s attorney. Technically, the Attorneys Law allows all attorneys regardless of
whether they are representing parties in a particular case to examine court decisions.
However, reports from ONI field researchers indicate that attorneys who have made
requests to review particular decisions issued in the application of the Internet Law
have been denied access by court clerks, because of privacy concerns. This lack of
access makes it difficult for Web site owners and their representatives to know how
they can fully comply with the law.
Authorities often apply the Internet Law to ban access to online content, as the law
provides quick enforcement mechanisms. Since the law does not provide the definitions of the criminalized activities, the court frequently refers to a number of other
laws in its rulings, including the Penal Code and the Law on Crimes against Atatu ¨rk.
Article 301 was enacted into the Turkish penal code on June 1, 2005, as part of a
package of penal-law reform enacted prior to Turkey’s proposal for membership into
the EU. Between 2005 and 2008, it was used to bring charges in more than 60 cases,
many of which were high profile, such as that against internationally renowned novelist Orhan Pamuk. 31 From its inception, Article 301 received significant opposition. Following the 2007 murder of Turkish-Armenian journalist Hrant Dink, 32 such opposition
increased significantly, resulting in former deputy prime minister and foreign minister
Abdullah Gu ¨l declaring that the law was in need of revision. 33 On April 30, 2008, the
law was only slightly modified to include lighter sentencing, 34 replacement of ‘‘Turkishness’’ with ‘‘Turkish nation’’ (even though public denigration of the Turks’ culture
and identity is a crime), and a requirement that the justice minister approve all cases in
350
Turkey
their right of reply against a content ban. However, this right is usually given after the
site has been already blocked. There is no guaranteed right of reply to Web site owners
whose content has been banned for a reason other than the ones listed in the Internet
Law.
One of the main concerns with court decisions on Internet cases is the lack of proportionality. When the court considers certain content illegal, it orders a complete ban
on the Web site hosting the content, instead of only blocking the particular material.
Typically, the rulings of the Criminal Peace Court only cite the relevant legal provisions on which they are grounded and the final court order. This procedure does not
provide the accused with the rationale behind the decisions, nor does it provide the
right to defend against the charges. In addition, the time for submitting the appeal is
very short, being only seven days.
Generally, court rulings in Turkey remain hidden from the public eye. The Turkish
Attorneys Law does not provide guarantees for publicity of court decisions without
regard to the particular type of dispute. Instead, this law restricts the right to make
a copy of a court decision, which for privacy concerns remains available only to the
party’s attorney. Technically, the Attorneys Law allows all attorneys regardless of
whether they are representing parties in a particular case to examine court decisions.
However, reports from ONI field researchers indicate that attorneys who have made
requests to review particular decisions issued in the application of the Internet Law
have been denied access by court clerks, because of privacy concerns. This lack of
access makes it difficult for Web site owners and their representatives to know how
they can fully comply with the law.
Authorities often apply the Internet Law to ban access to online content, as the law
provides quick enforcement mechanisms. Since the law does not provide the definitions of the criminalized activities, the court frequently refers to a number of other
laws in its rulings, including the Penal Code and the Law on Crimes against Atatu ¨rk.
Article 301 was enacted into the Turkish penal code on June 1, 2005, as part of a
package of penal-law reform enacted prior to Turkey’s proposal for membership into
the EU. Between 2005 and 2008, it was used to bring charges in more than 60 cases,
many of which were high profile, such as that against internationally renowned novelist Orhan Pamuk. 31 From its inception, Article 301 received significant opposition. Following the 2007 murder of Turkish-Armenian journalist Hrant Dink, 32 such opposition
increased significantly, resulting in former deputy prime minister and foreign minister
Abdullah Gu ¨l declaring that the law was in need of revision. 33 On April 30, 2008, the
law was only slightly modified to include lighter sentencing, 34 replacement of ‘‘Turkishness’’ with ‘‘Turkish nation’’ (even though public denigration of the Turks’ culture
and identity is a crime), and a requirement that the justice minister approve all cases in
350
Turkey