INFORMATION TECHNOLOGY LAW Lecture 9- Blocking Access to the Internet Dr. Kadir Bas

Based on their sovereignty rights, most states monitor and intervene the content of the Internet which is accessible in their territories. In Turkey, access to a website may be blocked if they publish some prohibited content. Rules and procedures for blocking a website are generally provided under ‘Law No 5651 on Regulating publication on the Internet and fighting against crimes committed through Internet Publication’ (İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele edilmesi Hakkında Kanun).

Reasons for Blocking Access to A Website Article 8 of Law No 5651 list the reasons to block a website. Some other laws also provide reasons for blocking access to a website. This list is exhaustive. Therefore, a website cannot be blocked based on a reason which is not included in those laws.

Blocking Access to A Website under Article 8 of Law No 5651 Article 8 of Law No 5651 provides that access to a website can be blocked if there is sufficient doubt that its content constitutes any of following crimes: -Encouraging the suicide of a person -Sexual abuse of children -Facilitating the use of addictive or exciting drugs -Supply of harmful substances to health -Obscenity (mustehcenlik) -Prostitution (fuhus) -Arranging a place or facility for gambling -Crimes against Ataturk

Blocking Access to A Website under Article 8 of Law No 5651 Encouraging the suicide of a person Article 94 of Turkish Criminal Code states that: -Any person who solicits, encourages a person to commit suicide, or supports the decision of a person for suicide or helps the suicide action in any manner whatsoever, is punished with imprisonment from two years to five years. [Başkasını intihara azmettiren, teşvik eden, başkasının intihar kararını kuvvetlendiren ya da başkasının intiharına herhangi bir şekilde yardım eden kişi, iki yıldan beş yıla kadar hapis cezası ile cezalandırılır.] -Any person who openly encourages others to commit suicide is punished with imprisonment from three years to eight years. [Başkalarını intihara alenen teşvik eden kişi, üç yıldan sekiz yıla kadar hapis cezası ile cezalandırılır.]

Blocking Access to A Website under Article 8 of Law No 5651 Encouraging the suicide of a person Many websites give information about the methods of suicide. It is controversial whether these websites can be considered to encourage the suicide of a person. However, these websites are generally not blocked. If a website actively motivates a person to commit suicide, this website will normally be considered as encouraging the suicide of a person and will be blocked.

Blocking Access to A Website under Article 8 of Law No 5651 Sexual abuse of children Article 103 of Turkish Criminal Code prohibits sexual abuse of children. Uploading and watching child pornography is internationally forbidden. Therefore, websites includes child pornography will be blocked. In Turkey, child pornography is the most common reason to block a website.

Blocking Access to A Website under Article 8 of Law No 5651 Facilitating the use of addictive or exciting drugs Article 190 of Turkish Criminal Code criminalises facilitating use of addictive or relieving/exciting drugs by; a) providing special place, equipment or material, b) taking precautions to avoid arrest of users, c)providing information to others about the method of use. A website may be used to give information to other about the method of use. This would fall within (c) described above. in this case, such a website can be blocked.

Blocking Access to A Website under Article 8 of Law No 5651 Supply of harmful substances to health Article 194 of Turkish Criminal Code criminalise supplying or delivering substances to children, persons suffering from mental illness or others using evaporative substances, or presenting such products to consumption risking others’ life. This crime may be committed on the Internet if a website sells such products. There are some websites which have been blocked for this reason.

Blocking Access to A Website under Article 8 of Law No 5651 Obscenity (mustehcenlik) Article 226 of Turkish Criminal Code criminalise obscene content in order to protect children and public morality. Obscenity is often used to block a website. Which content can be considered to be obscene can be controversial.

Blocking Access to A Website under Article 8 of Law No 5651 Prostitution (fuhus) Article 227 of Turkish Commercial Code criminalises forcing a person to become a prostitute. A website which is used to deceive some people to force them to be a prostitute in the future may be blocked. Blocking a website for this reason can be controversial because even Facebook can be used for this purpose.

Blocking Access to A Website under Article 8 of Law No 5651 Arranging a place or facility for gambling Article 228 of Turkish Criminal Code prohibits arranging a place or facility for gambling. Online gambling websites can be blocked because they constitute such a crime.

Blocking Access to A Website under Article 8 of Law No 5651 Crimes against Ataturk Law No 5816 on Crimes against Ataturk (Ataturk’e karsi islenen suclara iliskin kanun) criminalises certain acts such as insulting Ataturk. Youtube was blocked for couple of years because it included a video which insulted Ataturk. This reason has been used to block many websites publishing political content.

Blocking Access to A Website under Article 8 of Law No 5651 If there is sufficient doubt that a website’s content constitutes any crime mentioned above, the court may give a decision to block that website. This decision will be sent to Telecommunication presidency (Telekomunikasyon Iletisim Baskanligi) (TIB) for execution. TIB may decide the blocking of a website without a decision of the court if: -the content provider or hosting provider is located outside Turkey, or -regardless of whether the content provider or hosting provider is Turkey or not, the website’s content constitutes sexual abuse of children or obscenity.

Blocking Access to A Website under Article 8 of Law No 5651 A court decision to block a website under Article 8 will be abolished if the court decides acquittal. If TIB decides the blocking of a website, the relevant persons can bring an action against this decision in administrative courts. When a blocking decision is given, TIB will ask access provider to execute this decision.

Blocking Access to A Website under Article 9 of Law No 5651 A person whose rights have been infringed by the content can request the content provider or hosting provider (if he/she cannot reach the content provider) to remove the content from the Internet or publish the response he/she prepared for one week. If the content provider or hosting provider does not remove the content within two days, that request will be considered to be refused. In the case of refusal, the person may apply Sulh Ceza Mahkemesi and ask the removal of the content from the Internet or the publication of the response he/she prepared for one week. The content provider or hosting provider must execute this decision within two days

Blocking Access to A Website under FSEK FSEK Additional Article 4 provides a special procedure for the infringement of copyrights. According to this procedure, the right holders of the works which are subject of the infringement can request content providers to cease the infringement by removing the content from the Internet. Upon such application, the content provider must end the infringement within 3 days. If the infringement continues, the right holder may apply the public prosecutor and request that hosting provider suspends that content provider within three days request

Thank You!