The Venice Commission, the Council of Europe’s advisory body on constitutional matters, has recommended in an “urgent joint opinion” with the Human Rights and Rule of Law Directorate General that Turkish authorities not enact a draft amendment to the penal code regarding the provision of “false or misleading information.”
Turkish lawmakers last week began debating a government-backed bill that could intensify a years-long crackdown on critical reporting in Turkey, approving its first 14 articles so far.
The bill, which was proposed by the Justice and Development Party (AKP) of President Recep Tayyip Erdoğan in May, has already been approved by two parliamentary committees.
The urgent opinion, which was prepared at the request of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE), was released on Oct. 7.
It focuses on Article 29 of the draft law, which would amend the Turkish Penal Code by adding a provision (Article 217/A) that would subject persons found guilty of publicly disseminating “false or misleading information” to between one and three years in prison and would increase by half the penalty for offenders who hide their identity or act on behalf of an organization.
Referring to the Turkish government’s claim that the law is in line with regulations in the US and European countries such as Germany, France and the United Kingdom, the commission said the European countries cited as an inspiration for criminalizing “false or misleading information” hadn’t actually done this but had instead introduced obligations on internet platforms regarding illegal content.
“While other countries introduced laws on disinformation in the context of COVID-19, these have been highly criticized by international organizations, in particular international human rights organizations,” the opinion said.
Noting that online disinformation has admittedly become a “legitimate global concern,” the commission said the “most problematic” response to disinformation was its direct criminalization since history was filled with examples of regimes that applied criminal provisions to “quash dissent and criticism,” including against journalists and human rights defenders.
They emphasized that the provision under consideration – the criminalization of the dissemination of “false or misleading” information – amounted to an interference with freedom of expression, protected by Article 10 of the European Convention on Human Rights (ECHR).
The commission also noted that Article 217/A contains several terms, including “misleading information,” “false information to mislead,” “publicly disseminating,” “disturbance of the public peace,” “general well-being” and “within the framework of the activities of an organization,” which are “very broad and vague” and “open to different interpretations.”
According to the commission, no definition of “false or misleading information” is provided in Turkish law, and Turkish authorities informed them that the decision as to whether content includes misleading or false information would be taken by the courts, which would avail themselves of expert witnesses.
In this respect, the commission also noted that there were no criteria in the law against which the expert witnesses could make this assessment “objectively and consistently.”
The opinion also stressed that Article 29 of the law, irrespective of its wording, should be limited only to statements of fact and not value judgments such as expressions of an opinion since the latter cannot be tested as true or false.
They stated “serious doubts” regarding the necessity in a democratic society of the criminal response to “false or misleading information” envisaged with the draft amendment in question.
“… the Commission is particularly concerned with the potential consequences of such provision, namely, the chilling effect and increased self-censorship, not least in view of the upcoming elections in June 2023,” they said.
The commission said it was of the opinion that in order for Article 217/A to meet the first Article 10 criterion of “provided for by the law,” its scope of application should be clarified through the use of clearly defined terms.
After listing its reasons, the commission recommended that Turkish authorities not enact the draft amendment of Article 217/A to the Turkish Penal Code.
The AKP government has been relentless in its crackdown on critical media outlets, particularly after a coup attempt on July 15, 2016.
As an overwhelming majority of the country’s mainstream media has come under government control over the last decade, Turks have taken to social media and smaller online news outlets for critical voices and independent news.
Turks are already heavily policed on social media, and many have been charged with insulting President Erdoğan or his ministers, or criticism related to foreign military incursions and the handling of the coronavirus pandemic.
Turkey was classified as “not free” by Freedom House in its “Freedom in the World 2022” index.
More than 90 percent of Turkey’s media networks “depend on public tenders and are owned by large businesses with close personal ties to President Erdoğan,” according to a Freedom House report released in February.