The Omnibus Bill and the Social Media They Seek to Censor: Should We Delete and Re-create Our WhatsApp Groups?

Murat Volkan Dülger^* / Onur Özkan^*

One of the questions we hear most often these days is: “Our WhatsApp messages are apparently going to be recorded; should we delete the groups and set them up again?” There are those who put this forward not only as a question but also as a solution. On this view, it is thought that, with the amendment to be made to the laws, written, audio and visual messages on WhatsApp will begin to be monitored and everyone will be “put on file”. To think that the solution to this is to delete the groups and set them up again would, to put it at its simplest, be naive. The fundamental problem, however, is that this anxiety has been created. Those who propose this solution are of course not the ones who created the problem; they are merely looking for a solution to their own concerns. It is therefore necessary to get to the root of the problem.

A time of epidemic and crisis is a time in which people fear for their own lives and the lives of those close to them. We are going through a period in which solidarity and trust ought to be at their highest. All our attention is on the steps taken and the developments concerning public health; so much so that, wherever we look in the media, this is the subject we see. Unfortunately, at such times we become defenceless against quite fundamental changes being made without our noticing. Presumably in the belief that they will come onto the public agenda, be discussed and be criticised less, attempts are being made to introduce, alongside the provisions relating to the present situation, many unrelated amendments…

Earlier, we had criticised the Regulation on the Execution of Sentences, which disregards and severely restricts the rights of the defence, and had spoken of the unlawfulness of the examination of defence documents during lawyers’ prison visits. Now a similar situation applies to the surveillance and monitoring to be carried out on social media.

Will WhatsApp groups be monitored? In essence, at the root of this question lies the Omnibus Bill, which provides for amendments to certain laws in connection with the coronavirus epidemic. We may recall this bill as follows: a prohibition on the termination of employment contracts for a period of 3 months (Omnibus Bill, Art.

5) and wage support of TRY 39.24 in the event of unpaid leave (Art. 5) are regulated by this proposal. Alongside these, however, many amendments that cannot be linked to the epidemic are also being proposed. Among them were the amendments made to the Internet Law No. 5651¹ and the Electronic Communications Law No. 5809. Let us first dwell on the Internet Law.

Question: What Is Changing in the Internet Law?

The first amendment (proposed) to the Internet Law is the addition of the concept of “social network provider” to the law. Accordingly, social network providers are

“natural or legal persons who enable users to create, view or share data such as text, images, sound and location on the internet for the purpose of social interaction”

– that is how they are defined. We may think of social network providers as social media platforms. On that basis, the likes of Facebook, Twitter, Instagram and TikTok fall within this scope. But what about communication-based applications such as WhatsApp, Telegram and Skype?

Question: Can WhatsApp Be Regarded as a Social Network Provider under the Law?

Let us first answer this question: is WhatsApp a social media platform? No, WhatsApp is not a social media platform. For WhatsApp is used rather for communicating and talking, and serves telecommunication purposes. In this respect it is not, like Facebook, Twitter or Instagram, an application geared to sharing in which posts are opened up to social interaction for an indeterminate number of people. These features take it out of the category of social media platform.

On the other hand, the basic question ought to be whether the communication software in question will be regarded as a social network provider as a result of the amendment sought to be made to the Law. When we examine the definition, the expression “purpose of social interaction” stands out. Accordingly, media on which data such as text, images and sound can be created, shared or viewed on the internet for this purpose are each regarded as a social network provider.

First of all, the definition is excessively broad. The expression “social interaction”, for its part, is excessively vague. We would particularly like to point out that this definition appears to have been drawn up not to remain confined to social media but, as it were, to lay siege to all the “fortresses” of the internet world. Today everything can be counted as falling within social interaction: talking to a friend while walking down the street may be social interaction; so may sending a letter to someone, or your WhatsApp messages, which are a digital form of the letter. For this reason, what will count as social interaction is of great importance. The definition is so broad that it is even possible for the websites of media organisations that today open their news items or columns to comments to fall within this scope and be regarded as social network providers.

In our view, however, WhatsApp or communication tools of this kind should not be regarded as social network providers. Corresponding with a person or a group should not be regarded as social interaction or, more precisely, as a social network provider. For here people communicate among persons whom they themselves are able to determine. The expression “social interaction” should be interpreted narrowly; what should be regarded as falling within it is persons opening up their data, such as text, sound or images, to sharing by an indeterminate number of people, with interaction in that sense being the aim. In other words, only social media platforms in the true sense should fall within this scope. Otherwise every corner of the internet could be regarded as serving the purpose of data sharing and social interaction.

Our answer, then, is this: WhatsApp is not a social network provider and will not fall within the scope of this Law. Consequently there is no need for concerns in this direction. One thing, however, must be stated insistently and with emphasis: this definition must be changed. If the aim of the Law is to create a separate concept for social media, this definition goes beyond its purpose.

Question: What Will the Responsibilities of Social Network Providers Be?

Having explained social network providers and having, “in our view”, confined them to social media platforms, it is necessary also to explain the responsibilities imposed on them. The most important responsibility is that social media platforms that are based abroad and have more than one million daily accesses are required to maintain a representative in Turkey.

Accordingly, platforms such as Facebook, Twitter, Instagram or TikTok, whose headquarters are in places like the USA or China, must come to Turkey and open an office and a representative office. And what will these representative offices deal with?

The representatives have, first of all, been placed under an obligation to deal with and respond to requests for the blocking of access made on the basis of Article 9 of the Internet Law. Applications made directly by those whose personality rights have been attacked, or by decision of the criminal judgeship of peace, must be answered within 72 hours. The important change here is that it is possible to request not only the removal of content or the blocking of access but also the removal of the social media account itself. On top of this, the representative offices have been placed under an obligation to finalise the applications made by persons directly or by decisions of the criminal judgeship of peace, to keep records of the applications and to report three-monthly statistics on them to the Information and Communication Technologies Authority (BTK) in the form of a report.

In addition to these, there is a further very important provision: the introduction of the requirement that these social networks keep user data in Turkey. Accordingly, servers must be maintained in Turkey and the data of users in Turkey must be kept on those servers. The most important consequence of this is as follows. Article 332 of the Code of Criminal Procedure (CMK) provides that, during the investigation or prosecution of offences, the public prosecutor’s office and the courts may request information from the institutions, organisations and persons they see fit. It reads:

“A reply must be given within ten days to information requested in writing by the public prosecutor, the judge or the court during the investigation and prosecution of offences.”

Let us make the situation concrete with an example. Suppose, for instance, that in an environment such as Twitter, where anonymity is to the fore, it is alleged that the offence of “inciting the public to hatred and hostility” (Turkish Criminal Code (TCK), Art. 216) – an offence which is popular these days and into which virtually every dissenting statement is drawn – has been committed through an anonymous account. In the investigation opened on this basis, the prosecution authorities, wishing to learn the identity behind this anonymous account, that is, to identify their suspect, will apply to Twitter’s representative office in Turkey. Twitter, for its part, will find itself having to share the “user data” it keeps in Turkey. For otherwise it will have acted in breach of the provision on requests for information. Failure to respond to a request for information, moreover, may constitute the offence of abuse of office as regards the representative offices located in Turkey.

Before this provision, too, the public prosecutor’s offices or the courts used to request from these companies information relating to proceedings for offences committed via social media platforms. However, since these companies are based in the USA, it was not possible to find an interlocutor or to obtain a reply. It can be seen that the amendment proposal now put forward aims to ensure that these companies have an interlocutor in Turkey.

This also reveals another aim of the proposed amendment to the Law: to force platforms such as Twitter and Facebook to cooperate, to put an end to anonymity on social media, to be able to put people on file and, by bringing about self-censorship, to prevent dissenting voices from being raised on social media… This, then, is the aim underlying the proposal; if the news reports and opinions published on the subject are examined, we can say that public opinion has also formed along these lines.

Question: What Happens If a Social Network Provider Does Not Appoint a Representative?

Social network providers meeting the conditions will be notified by the BTK and requested to appoint a representative. If the social network provider does not designate and notify a representative within 30 days of this notification, then, upon application by the BTK and by decision of the criminal judgeship of peace, the internet traffic bandwidth of that network shall be throttled by 50 per cent; if there is no development within a further 30 days of the implementation of this decision, throttling of 95 per cent this time shall be applied.

The throttling of internet traffic, in turn, means that it will not be possible to access these sites from Turkey in any way whatsoever. In other words, the possibility of accessing, by means of services such as VPNs, websites to which access has been blocked from Turkey, as used to be done, will be cut off. These sites will now be slowed down to such an extent that they cannot be entered from Turkey at all. Consequently, the plug will be pulled on social media platforms that do not appoint a representative.

When these platforms appoint a representative, on the other hand, this throttling will automatically cease to have effect. In that case we may find that at first certain platforms that did not comply with the notification cannot be accessed, and that later we are suddenly able to access these platforms because the representative has been appointed.

Under this question the following must also be discussed. Is the application of such a sanction (throttling and rendering inaccessible from Turkey) proportionate, is it legitimate, is it lawful? Here we are faced with conflicting rights (interests). Twitter, for instance, is a place where all of us obtain and share news and opinions. The existence of these platforms therefore rests on freedom of expression, the right to impart news and the right of the public to receive news and to be informed. Today, the arbitrary closure of sites such as Twitter or Wikipedia without any reasons being given would be definitely contrary to law and to the Constitution. Indeed, the decisions blocking access to these organisations were set aside by the Constitutional Court and held to be violations.

The throttling decision, however, will not be taken without reasons; its reason is non-compliance with the obligation to “designate and notify a representative”. The representative’s task, in turn, is to respond to applications concerning personality rights. Thus personality rights and the freedom to receive information are in conflict. In this conflict, it is people’s freedom to receive information that should prevail. For where a site is rendered inaccessible because no representative has been appointed, there is as yet no attack on personality rights. Moreover, in order to prevent an attack on personality rights it is sufficient to remove the content in question alone; rendering the site inaccessible in its entirety would not be proportionate. Consequently, it is unlawful and impermissible for a sanction which could not be applied even if an attack existed to be applied on the ground that a mechanism (the representative office) capable of eliminating a possible attack has not been set up.

In addition, it should be recalled that these social media platforms are already covered by the law as “hosting providers” and that, at present, even if the amendment proposal is not adopted, they are able to remove from access text, sound or images containing an attack on personality rights. In other words, personality rights can be protected even without a representative; rendering a site inaccessible and abolishing the freedom to receive information merely in order to strengthen this protection through the appointment of a representative is unlawful.

This article too will therefore have to be amended and revised; otherwise it is likely to be annulled by the Constitutional Court. Forcing social media platforms to open a representative office under the threat that they will be unable to continue operating in Turkey would be contrary to law and to the Constitution.

Final Question: What Is Changing in the Electronic Communications Law?

It is proposed that the concept of “over-the-top service” be added to the scope of this law as well and that its scope be widened. Accordingly, an over-the-top service denotes

“publicly available electronic communications services in the field of voice, written and visual communication which are provided to subscribers and users with internet access by means of software, independently of operators or of the internet service provided, or application services provided by means of a software platform”

– such is the wording. This in fact describes precisely platforms such as WhatsApp, Skype or Telegram. Applications through which we carry out communication services independently of our GSM operator are providing an “over-the-top service” and count as falling within this scope. It is therefore possible to say that WhatsApp, which is not a social network provider, is an over-the-top service.

What kinds of changes, then, are envisaged by bringing providers of over-the-top services within the scope of the Law? This we see in Article 58 of the Omnibus Bill. Under it, the BTK will be able to regulate WhatsApp-like applications on grounds of the “public interest” and, where necessary, to block communication through them. The full text is as follows:

“The Authority is authorised, having regard to the requirements of the public interest, to make the necessary regulations concerning the provision of over-the-top services, to take measures to prevent the provision of over-the-top services

without authorisation and, where necessary, to impose obligations on operators to take the measures provided for in the Authority’s regulations.”

Here again, the expression “providing services without authorisation” and questions such as how authorisation will be granted are unclear. What is clear, however, is that WhatsApp, for instance, may be blocked and rendered unusable when it fails to meet the conditions required by the BTK and does not comply with the obligations.

Conclusion

Let us answer the question in the title: no, let us not delete our WhatsApp groups and set them up again. That is not a solution. Indeed, even if we delete our conversations they do not vanish from the world of data. They continue to be stored for a certain period. Again, it is not possible to infer from the Omnibus Bill that WhatsApp conversations will be recorded. It looks rather like a provision designed to bring social media under “tight control”. But, we must repeat, as long as this definitional article remains unchanged it is difficult to speak with certainty.

Moreover, WhatsApp conversations are end-to-end encrypted. No one, including WhatsApp and the intelligence services, can access the content of these messages. Even if WhatsApp wished to submit the correspondence to a court, the encrypted messages cannot be read or understood. These conversations can therefore be read only by getting hold of your telephone or that of the person to whom you sent the message. Furthermore, even if they could be recorded, the technical capacity to monitor the WhatsApp conversations of everyone in Turkey has not yet been attained. That could have been possible only for specified persons. In conclusion, there is no need for concern on this score.

However, as we have explained above, the omnibus law provides for a major mechanism of surveillance and monitoring over social media. There are large-scale changes that affect not only social media users but also social media platforms.

Today we are anxious, on the one hand, about our privacy and our safeguards on the social media platforms where we spend a significant part of our daily lives and, on the other, about our own lives and those of our loved ones because of the coronavirus epidemic. We see that such an amendment has been made at an extremely inopportune time, that it has been placed inside an omnibus law that ought to be concerned with the epidemic, and that the intention is thereby, as it were, to keep it away from public attention. Not only what the amendment proposal is, but also how it has been made, is a major problem. We hope that this strategy of governance will be abandoned and that fair and transparent governance will prevail; that such important amendments will be opened up to the attention and scrutiny of as many people as possible; and that democracy and an environment of debate will be secured. Alongside this criticism of ours concerning procedure, it is necessary to repeat our criticisms concerning substance.

The provision of such strict conditions of surveillance over social media and the creation of an environment in which people will be “put on file” constitute an interference with freedom of expression by giving rise to self-censorship. The expression “social interaction” is highly vague and the definition of social network provider is very broad. It must be revised, and a narrow definition covering only social media platforms must be drawn up. Rendering social media platforms inaccessible if they do not appoint a representative is contrary to the right to receive information and is disproportionate. The same applies to the blocking of the provision of over-the-top services.

In conclusion, our expectation is that the amendment be withdrawn and that the views of the public

be assessed and a more suitable proposal be submitted. Otherwise freedom of expression, which is already being restricted as far as possible by using criminal law as an instrument, will this time also be restricted physically through the use of technical means under the power conferred on the BTK, and our report card in the field of freedom of expression will rise to the level of “top marks with distinction”!