UPDATE: Facebook has joined YouTube and TikTok to appoint a legal entity in Turkey to comply with Turkish draconian social media law. Twitter, Periscope, and Pinterest stayed strong against the requirements of the Law. Now, the Turkish regulator (BTK) has sanctioned them by prohibiting Turkish taxpayers from placing ads and making payments to them. If twitter, Periscope, and Pinterest continue to refuse to appoint a representative until April 2021, the BTK can apply to a Criminal Judgeship of Peace to throttle the provider’s bandwidth initially by 50%. The Turkish government should refrain from imposing disproportionate sanctions, given their significant chilling effect on freedom of expression.
Democracy in Turkey is in a deep crisis. Its ruling party, led by Recep Tayyip Erdoğan, systematically silences marginalized voices, shuts down dissident TV channels, sentences journalists, and disregards the European Court of Human Rights decisions. As we wrote in November, in this oppressive atmosphere, Turkey’s new Social Media Law has doubled down on previous online censorship measures by requiring sites to appoint a local representative who can be served with content removal demands and data localization mandates. This company representative would also be responsible for maintaining the fast response turnaround times to government requests required by the law.
The pushback against the requirements of the Social Media Law was initially strong. Facebook, Instagram, Twitter, Periscope, YouTube, and TikTok had not appointed representatives when the law was first introduced late last year. But now, two powerful platforms have capitulated, despite the law’s explicit threat to users’ fundamental rights: The first one, YouTube, announced on December 16th, followed by TikTok last Friday and DailyMotion just today, January 9th. These decisions creates a bad precedent that will make it harder for other companies to fight back.
YouTube and TikTok now plan to set up a “legal entity” in Turkey, providing a local government point of contact. Even though both announcements promise that the platforms will not change their content review or data handling or holding practices, it is not clear how YouTube or TikTok will challenge or stand against the Turkish government once they agree to set up legal shops on Turkish soil. The move by YouTube (and the lack of transparency around its decision) is particularly disappointing given the importance of the platform for political speech and over a decade of attempts to control YouTube content by the Turkish government.
The Turkish administration and courts have long attempted to punish sites like YouTube and Twitter who do not comply with its takedown orders to their satisfaction. With a local legal presence, government officials can not only throttle or block sites; they could force platforms to arbitrarily remove perfect legal, political speech or disclose political activists’ data or force them to be complicit in a government-sanctioned human rights violation. Arbitrary political arrests and detentions are increasingly common inside the country, from information security professionals to journalists, doctors and lawyers. A local employee of an Internet company in such a hostile environment could, quite literally, be a hostage to government interests.
Reacting to TikTok Friday’s news, Yaman Akdeniz, one of the founders of the Turkish Freedom of Expression Association, told EFF:
“TikTok is completely misguided about Turkey Internet-related restrictions and government demands. The company can become part of the problem and can become complicit in human rights violations in Turkey.”
Chilling Effects on Freedom of Expression
Turkey’s government has been working to create ways to control foreign Internet sites and services for many years. Under the new Social Media Law, failure to appoint a representative leads to stiff fines, an advertisement ban, and throttling of the provider’s bandwidth. According to the law, the Turkish Information and Communication Technologies Authority (Bilgi Teknolojileri ve İletişim Kurumu or BTK) can issue a five-phase set of fines. BTK has already sanctioned social media platforms that did not appoint local representatives by imposing two initial sets of fines, on November 4 and December 11, of TRY10 million ($1.3 million) and TRY30 million ($4 million) respectively. Facing these fines, YouTube, and now TikTok, blinked.
If platforms do not appoint a representative by January 17, 2021, BTK can prohibit Turkish taxpayers from placing ads on and making payments to a provider’s platform if they do not have a Turkey-based representative. If the provider continues to refuse to appoint a representative until April 2021, the BTK can apply to a Criminal Judgeship of Peace to throttle the provider’s bandwidth initially by 50%. If, after that, the provider hasn’t still appointed a representative until May 2021, BTK can apply for a further bandwidth reduction; this time, the judgeship can decide to throttle the provider’s bandwidth anywhere between 50%-90%.
The Turkish government should refrain from imposing disproportionate sanctions on platforms given their significant chilling effect on freedom of expression. Moreover, throttling, which means that locals in Turkey do not have access to social media sites, is effectively a technical ban to access such sites and services—an inherently disproportionate measure.
Human Rights Groups Fight Back
EFF stands with Turkish Freedom of Expression Association (Tr. İfade Özgürlüğü Derneği), Human Rights Watch, and Article 19 in their protest against YouTube. In a joint letter, they urge YouTube to reverse its decision and stand firm against the Turkish governments’ pressure. The letter urgently asks YouTube to clarify how the company intends to respect the rights to freedom of expression and privacy of their users in Turkey; and if they can publish the company’s Human Rights Impact Assessment that led to the decision to appoint a representative office, which can be served with content take-down notifications.
YouTube, a Google subsidiary, has a corporate responsibility to uphold freedom of expression as guided by the UN Guiding Principles on Business and Human Rights, a global standard of “expected conduct for all business enterprises wherever they operate.” The Principles exist independently of States’ willingness to fulfill their human rights obligations and do not diminish such commitments. And it exists over and above compliance with national laws and regulations protecting human rights.
YouTube’s Newly Precarious Position
According to YouTube’s Community Guidelines, legal content is not removed unless it violates the site rules. Moreover, content is removed within a country only if it violates the laws of that country, as determined by YouTube’s lawyers. The Transparency Report for Turkey shows that Google did not take any action concerning government takedown requests for 46.6% of Turkey’s cases.
Those declined orders demonstrate how overbroad and politicized Turkey’s takedown process has become, and how important YouTube’s freedom to challenge such orders has been. In one of the requests, the Turkish government requested a takedown of videos where officials attack Syrian refugees who try to cross the Turkey-Greece border. YouTube only removed 1 out of 34 videos because only one video violated its community rules. In another instance, YouTube received a BTK request, and then a court order, to remove 84 videos that criticized high-level government officials. YouTube blocked access to seven videos, 16 videos were erased by users, and 61 videos remained on site. Another example shows that YouTube did not take down 242 videos allegedly related to an individual affiliated with law enforcement.
With a local representative in place, YouTube will find it much harder to resist arbitrary orders, nor will it respect its responsibilities as part of its membership of the Global Network Initiative and under international human rights law.
Social media companies must uphold international human rights law when it conflicts with local laws. The UN Special Rapporteur on free expression has called upon companies to recognize human rights law as the authoritative global standard for freedom of expression on their platforms, not domestic laws. Likewise, the UN Guiding Principles on Business and Human Rights provide that companies respect human rights and avoid contributing to human rights violations. This becomes especially important in countries where democracy is most fragile. The Global Network Initiative’s implementation guidelines were written to cover cases where its corporate members operate in countries where local law stands in conflict with human rights. YouTube has given no public indication of how it would seek to match its GNI commitments given its changed relation with Turkey.
Tech companies have come under increasing criticism for decisions to flout and ignore local laws or treat non-U.S. countries with attitudes that lack understanding of the local context. In many cases, local compliance and representation by powerful multinational companies can be a positive step.
But Turkey is not one of those cases. Its ruling party has undermined democratic pluralism, an independent judiciary, and separation of powers in recent years. Lack of checks and balances creates an oppressive atmosphere and results in the total absence of due process. Compliance with local Turkish law can potentially mean becoming the arm of an increasingly totalitarian State and complicity with its human rights violations.
Arbitrary Blocking and Content Removal
EngelliWeb (Eng. BlockedWeb), a comprehensive project initiated by the Turkish Freedom of Expression Association, aims at keeping statistical records of censored content and reporting about it. In one instance, EngelliWeb reported that one of their stories (reporting the blocking of another site) became subject to a court order requesting the blocking and content removal of such news. The Association has recently announced they would object to the court decision. Another access blocking decision is striking because the same judge who decided in favor of the defendant in a defamation lawsuit ordered blocking access to the news story related to the same lawsuit on the grounds of “violation of personal rights.” These examples demonstrate there is no justified reason, much less a legal one, to censor such news in Turkey.
According to Yaman Akdeniz, an academic and one of the founders of the Turkish Freedom of Expression Association:
“Turkish judges issue approximately 12,000 blocking and removal decisions each year, and over 450,000 websites and 140,000 URL are currently blocked from Turkey according to our EngelliWeb research. In YouTube’s case, access to over 10,000 YouTube videos is currently blocked from Turkey. In the absence of due process and independent judiciary, almost all appeals involving such decisions are rejected by same level judges without proper legal scrutiny. In the absence of due process, YouTube and any other social media platform provider willing to come to Turkey, risk becoming the long arm of the Turkish judiciary.
...the Constitutional Court has become part of the problems associated with the judiciary and does not swiftly decide individual applications involving Internet-related blocking and removal decisions. Even when the Constitutional Court finds a violation as in the cases of Wikipedia, Sendika.Org, and others, the lower courts constantly ignore the decisions of the Constitutional Court which then diminish substantially the impact of such decisions.”
Social media companies should not give in to this pressure. If social media companies comply with the law, then the Turkish authoritarian government wins without a fight. YouTube and TikTok should not lead the retreat.