Instagram BannedTrkiye’s Latest Internet Restriction

In my late May article in Tech Policy Press analyzing a historic victory for freedom of expression in Trkiye, I noted that despite the victory, important questions remain unanswered in the Internet regulatory framework. While the Constitutional Court declared unconstitutional Article 9 of the Internet Law (No. 5651) – a section that previously allowed arbitrary blocking of access and removal of content by criminal courts to prevent human rights violations – the Court did not address the structural problems or constitutionality of Articles 8 and 8/A of the Internet Law.

Without such a full judicial review, Trkiye recently saw another nationwide access blocking order issued. The Information and Communication Technology Authority (ICTA) blocked Instagram on August 2, 2024, without any clear explanation from ICTA. The block affects 57.1 million Turkish users, the fifth largest Instagram user base in the world, and severely disrupts the operations of small businesses that rely heavily on the platform.

Later, Transport and Infrastructure Minister Abdulkadir Uralolu said that Instagram allegedly ignored “sensitivities” and violated certain “catalog crimes” under Article 8 of the Internet Law. However, it did not specify what crimes the platform was accused of violating. However, media reports suggest that the block was related to Instagram’s content moderation policies regarding the war between Israel and Hamas, using the catalog crimes as a pretext. This could also be an excerpt from comments made by President Recep Tayyip Erdoan and Communications Directorate Head Fahrettin Altun.

Catalog of Crimes and Law Enforcement Practices

Under Article 8 Under Article 10 of the Internet Law, a decision to block access or remove content can be taken if there are sufficient grounds to suspect that the content constitutes one of the listed crimes, known as catalogue crimes, such as incitement to suicide, sexual exploitation of children, obscenity and crimes against Atatürk. The article gives enforcement powers to two authorities: the judicial authorities and the ICTA.

Judicial authorities may issue orders to remove content and/or block access as a precautionary measure during the investigation or prosecution phase if a delay poses a risk. On the other hand, ICTA may issue such orders as an administrative measure. It is important to note that in early 2024, the Constitutional Court declared ICTA’s power to order removal of content unconstitutional, as such administrative measures violate the presumption of innocence in the absence of a final judicial determination of the alleged offence. However, ICTA retains the power to issue access blocking orders for catalogue offences. According to the EngelliWeb Project, ICTA issued the most access blocking decisions under Article 8 in 2022 alone, affecting 109,037 domain names, or 79% of the total.

Despite the Constitutional Court’s limitation, ICTA’s extensive authority remains largely unchanged in practice, as Article 8/A of the Internet Law still allows the entity to issue orders to remove content and block access if the delay would endanger life or property, national security, public order, public health or the prevention of crime. This article became famous when Wikipedia was blocked in Turkey for two and a half years on grounds of national security and public order. More recently, a similar action was taken against the storytelling platform Wattpad.

Information from Instagram’s Transparency Report and Case Law

It is not yet clear what specific crimes Instagram is allegedly violating in Turkey or whether these laws are being used to pressure the platform to comply with government policy. Notably, Instagram’s parent company, Meta, published Instagram’s transparency report on content removal requests from January to June 2024, just two days before the decision to block access was made. The report reveals that Instagram received 1,849 removal requests from ICTA out of a total of 2,953 requests under Articles 8 and 8/A of the Internet Law. These requests targeted 2,580 pieces of content. Instagram responded by removing 504 items for policy violations and restricting 1,941 items in Trkiye based on local law (2,445 in total). In other words, Instagram showed strong compliance with authorities’ takedown requests, addressing 94% of the content (2,445 out of 2,580) listed in these requests by effectively removing or restricting it.

Given this high level of compliance and the lack of clear communication from the ICTA, it is not convincing to conclude that Instagram infringes catalogue offences, as some authorities have suggested. Furthermore, Section 8(17) of the Internet Act specifies that blocking access to an entire website should be a last resort, to be used after attempts to block specific content have failed. This principle is also supported by several judicial decisions. For example, in the case Keskin Kalem Inc. Publishing and Trade case, the Constitutional Court stressed that blocking access to online media should be an exceptional measure, to be used only when less drastic methods have proven ineffective. Similarly, in the case concerning the nationwide ban on Wikipedia, the Constitutional Court ruled that a complete blocking of the Wikipedia website constituted a disproportionate infringement of freedom of expression. Furthermore, Birgun Communications and Publishing Inc. In this case, the Court warned that measures to block access could easily develop into instruments of censorship and that the discretion of the government in such cases must therefore be strictly limited.

Conclusion

The Turkish government has a history of using legal measures to pressure social media platforms to adhere to its policies and to suppress dissenting voices. This often includes imposing access restrictions under the guise of complying with the law. Given this context and the lack of clear communication from ICTA, it is understandable that some have suggested that blocking access to Instagram may not be an appropriate measure. unique Given the alleged violations of catalog law, this situation shows why it would be useful for services like Instagram to clarify, where possible, the underlying reasons for these decisions to block access and not to refrain from using appeal procedures when necessary. Otherwise, without this transparency or legal challenge, there is always a risk of continued arbitrary interference in this regulatory framework.

Disclaimer: The opinions expressed are solely those of the authors and do not reflect the views or opinions of his employer or its affiliates. These opinions should not be construed as legal advice.