Avrupa İnsan Hakları Sözleşmesi'nin 10 Maddesi Işığında Çevrimiçi Bilgi Çarpıtma (Online Disinformation in the Light of Article 10 of the European Convention on Human Rights)
Creators: name: Yeşiltuna, Oğuzhan
Publisher: name: Zenodo
Year: 2023
Subjects: subject: Disinformation
subject: Democracy
subject: Freedom of Expression
subject: ECHR

description: The thesis focuses on online disinformation which has disruptive impacts on democracy and fundamental rights and freedoms and has become one of the most important problems to be tackled in today’s information ecosystem. In the study, firstly, the conceptual framework of disinformation is drawn: The current definitions of the concept, its medium, tools, actors, and impact are discussed. It is tried to determine where it stands in the context of freedom of expression.Existing regulatory responses to online disinformation and alternative responses that may be less restrictive are then examined. Finally, the legal framework in Turkey is evaluated.

 

 

The aim of the study is to examine how to tackle online disinformation without unlawful interference with freedom of expression. The main question sought to be answered throughout the thesis is: How to tackle online disinformation without violating freedom of expression? In order to adequately answer this main question, the sub-questions investigated are as follows: What is online disinformation? What actors are involved in the creation and dissemination of online disinformation and which tools are used? What is the impact of online disinformation on democracy and human rights? Does distorted information enjoy freedom of expression protection? What are the steps taken and may be taken at the international and national levels in the fight against online disinformation? What is the legal status in our country in the fight against online disinformation?

 

 

There are several different reasons for considering the European Convention on Human Rights in the study. First of all, although online disinformation is a topic that is increasingly addressed in academic legal literature, studies focusing on the subject in this context are relatively few. Although online disinformation has not yet been directly addressed by the European Court of Human Rights, the Court’s current case law on freedom of expression and its understanding of the Convention as a living document that must be interpreted in the light of current conditions makes it convenient to examine the subject in this context. In addition, the European Union, which is the leading policy-making actor in the fight against online disinformation, makes reference to the Convention when determining the standard for freedom of expression and that the Convention is a part of our domestic law are other reasons that should be mentioned. However, the study is not limited to the aforementioned Article of the Convention and the Court’s case law on this issue. Other international human rights law standards, national regulations, and corporate policies are also referenced, particularly in explanations about tackling online disinformation.

 

 

It is appropriate to mention the following points regarding the scope and limits of the thesis study: In the literature review related to the study, the intersection of “freedom of expression” and “disinformation” is focused on. Single-level disinformation activities directed at individuals are out of the scope of the study as they are currently handled in contexts such as defamation. Turkish, English and French works listed as a result of searches in academic databases are used. Secondary sources are referenced in terms of national regulations and judicial decisions that are not originally in one of these languages. In addition, it should be noted that developments related to online disinformation are progressing at a pace that makes it difficult to follow and analyze. Only during the writing process of this study, the advisory texts of the United Nations, the European Union, and the Council of Europe were updated, new binding regulations were introduced, the policies of social media platforms were renewed, criminal law sanctions were regulated in dozens of countries including Turkey, and Law No. 5651 on Regulations of Publications on the Internet and Combating Crimes Committed by Means of Such Publication, which is the main regulation on Internet content in our country, was amended three times. For this reason, it should be underlined that the thesis reflects the current situation as of the defense date.

 

 

This thesis study titled “Online Disinformation in the Light of Article 10 of the European Convention on Human Rights” consists of two main parts: “Conceptual Framework of Online Disinformation” and “Tackling Online Disinformation”. In the first part of the study, the definition, tools, and actors of online disinformation are clarified. It focuses on the aspects of disinformation that differ from other types of information disorder, by whom for what purposes and by which methods it is practiced, and how it impacts democracy and fundamental rights and freedoms. In the second section of the first part, online disinformation is considered in the context of freedom of expression theory and the freedom of expression standards of the European Convention on Human Rights. The second part, titled “Tackling Online Disinformation” concentrates on current regulatory responses to combating online disinformation. In this context, first of all, the steps taken by the United Nations, the European Union, and the Council of Europe, the common approaches in national regulations, and the responses of social media platforms on the subject are discussed. Alternative ways are included, prioritizing the elimination of the structural problems of the information ecosystem and the construction of a secure one. In the second section of the second part, the current legal framework in Turkey is addressed.

 

 

The first part consists of two subsections, “Clarifying Definitions, Tools, and Actors” and “Placing Online Disinformation in the Freedom of Expression Context”. It is possible to make the following remarks regarding the first section of the first part: The difficulties associated with online disinformation begin at the definitional level. Although there is no agreed definition of the concept, it is separated from other types of information disorder, namely misinformation and malinformation; it may be said that it does not completely overlap with fake news, propaganda, and post-truth concepts in terms of scope. Although the approach of the European Commission, which understands disinformation as “the creation, presentation, and dissemination of verifiably false or misleading information for the purposes of economic gain or intentionally deceiving the public, and which may cause public harm”, may be adopted as a definition, it is difficult to say that this definition alone is sufficient for legal regulation. The current medium of disinformation is the Internet and social media. The Internet and social media transform information processes by accelerating, cheapening, and making them public. Putting the user at the center, Web 2.0 applications disintermediate and democratize content creation. However, these opportunities provided by the Internet and social media in the creation and dissemination of information are also factors that make it a suitable medium for disinformation. As a matter of fact, what makes disinformation so disruptive is the abuse of the online environment with various techniques, tactics, and methods that are decisive in creating distorted content and increasing its visibility. This abuse is carried out by different actors such as states, governments, populist politicians, political parties, ideological groups, and terrorist organizations. The motive that drives them in this direction may be political, ideological, or financial interests. It is individuals who are exposed to this information and who knowingly or unintendedly disseminate it to others. Cognitive pitfalls of the human mind and psychology, such as confirmation bias, motivated reasoning, illusory truth effect, and backfire effect, are decisive in this. The impact of online disinformation is particularly seen in democracy and fundamental rights and freedoms. Disinformation, aided by filter bubbles and echo chambers, undermines the values upon which modern democracy is built, such as political participation, pluralism, and the rule of law. Many human rights such as the right to protection of personal data, which is guaranteed under the scope of the right to respect for private and family life, the right to participate in public affairs, and the right to vote, non-discrimination, and the right to health are directly affected by online disinformation. Thus, online disinformation is a problem that needs to be tackled. However, regulatory responses to combat online disinformation are highly likely to result in unlawful interference with freedom of expression. The second section of the first part of the thesis focuses on this.

 

 

Regarding the second section of the first part of the thesis, the following may be stated: The theory, pioneered by John Milton and John Stuart Mill, which justifies freedom of expression through the discovery of truth, opposes suppression of information because it is fabricated, false or unfounded. Truth must be allowed to encounter such information as it will be the winner in the end. Parrhesia in Ancient Greece also implies an ethical and political stance on telling the truth. Article 10 of the European Convention on Human Rights, which guarantees freedom of expression, also protects all types of expression in principle. Factors such as the truthfulness of the statement in terms of content or the damage it caused do not categorically exclude it from this broad protection. However, according to the Convention, freedom of expression is not unlimited. Interferences that are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society do not violate freedom of expression. Although the European Court of Human Rights has not yet made a decision directly on online disinformation, the current freedom of expression case law indicates that unfounded information sharing is within the scope of Article 10. Regulations that allow vague, subjective, and arbitrary assessments of what constitutes false information or that limit online disinformation on the basis of mere falsity without pursuing any legitimate purpose violate Article 10. However, it is less likely that the Court will find a violation based on the criteria of “being prescribed by law” and “pursuing legitimate aim” in the applications that will come before it. On the other hand, when examining whether the interference within the scope of combating online disinformation is necessary in a democratic society, the Court would consider the presence of some additional factors such as the nature of the distorted information (e.g. factual statement, value judgment, political statement), its relevance to public debate, its audience, the applicant’s duty and responsibility to provide accurate, reliable and accurate information, and severeness of the sanction applied in the concrete case. Interferences that erode the pluralistic discussion environment by suppressing oppositional voices and that criminalize the freedom of expression will violate Article 10.

 

 

The second part is divided into two subsections, titled “Regulatory Responses and Alternative Ways to Tackle Online Disinformation” and “Assessment of the Legal Framework for Combating Online Disinformation in Turkey”. It is possible to make the following remarks regarding the first section of this part: Examining the existing regulatory responses to combating online disinformation, it is seen that some of them are given by international organizations. International organizations lead the fight against online disinformation with binding and advisory texts. Among them, the efforts of the United Nations, the European Union, and the Council of Europe are prominent. Initiatives to combat online disinformation within the Council of Europe and the United Nations emphasize a multi-stakeholder approach and commitment to human rights. The European Union, on the other hand, is the leading actor in policy-making in the fight against online disinformation, as it is in many challenges related to information technologies.

 

 

Report of the High-Level Expert Group on Fake News and Online Disinformation, Action Plan against Disinformation, Code of Practice on Disinformation, Digital Services Act, Digital Markets Act, 2022 Strengthened Code of Practice on Online Disinformation and the European Declaration on Digital Rights and Principles, demonstrates the European Union’s determinedness to tackle online disinformation without limiting freedom of expression. According to the European Union approach, online platforms should support free democratic debate online. Given the role of the online environment in shaping public opinion and discourse, these platforms should mitigate the risks arising from the functioning and use of the services they offer, such as online disinformation, and protect freedom of expression. Other existing regulatory responses to tackling online disinformation appear to have been introduced by states and social media platforms. States adopt some common approaches in their national regulations. These are blocking access to content, imposing certain obligations on service providers within the scope of content regulations, and criminalizing disinformation. The functionality of these approaches is controversial. In addition, if a fair balance is not struck between conflicting values, each one carries the risk of causing new human rights problems. At this point, it is not realistic to design a fight against disinformation without social media platforms. However, the framework within which these actors may interfere with freedom of expression within the scope of content moderation needs to be carefully determined.

 

 

Regarding the last section of the second part, which assesses the framework in Turkey, the following may be noted: Turkey bears the stamp of all three approaches that are common in states’ national regulations to combat online disinformation. Provisions regulating the access blocking to online content and imposing obligations on Internet actors of Law No. 5651 and some provisions of the Turkish Penal Code No. 5237 (art. 217/A, 237, 323) may be associated with online disinformation. Law No. 5651 does not contain a specific provision regarding online disinformation. However, if distorted content is also covered by one of the provisions in which the content may be removed or access to it be blocked pursuant to Law No. 5651, it may be possible to interfere with the distorted content. But, as shown in the thesis study, Law No. 5651 and its current implementation have serious deficiencies in terms of freedom of expression standards in Article 10 of the European Convention on Human Rights and the Court’s case law on the subject. Therefore, although it is possible to interfere with content containing distorted information if such content is also within the scope of Law No. 5651, we are of the opinion that such an application will reinforce existing problems in terms of freedom of expression. There are also serious concerns about the legality of Article 217/A, titled the crime of publicly disseminating information misleading the public, which was added to the Turkish Penal Code by Law No. 7418. Although the legislator’s aim to combat disinformation is legitimate, its criminalization is not the least restrictive measure to freedom of expression. The provisions of Law No. 5651 and the existing regulations of the Turkish Penal Code aiming at protecting public peace make the presence of a pressing social need to introduce Article 217/A be questioned. The provision of a prison sentence of up to three years for the perpetrator raises the question of the proportionality of the sanction. As a matter of fact, in any of the countries such as Germany, France, and England, which are implied to be taken as an example in the general justification of Law No. 7418, no penal sanction specific to the act of disseminating false information has been envisaged. For these reasons, it is difficult to say that the aforementioned provision meets the freedom of expression standards in Article 10 of the European Convention on Human Rights.

 

 

Instead of introducing content-based prohibitions, ensuring the following points present alternative ways to tackle online disinformation: The effectiveness of independent fact-checking practices, increasing digital media and information literacy of all citizens, and the introduction of regulations guaranteeing transparency and accountability in personal data processing activities, in political advertising, and in the design and management processes of algorithmic systems, and their strict implementation. Tackling online disinformation should prioritize resolving the structural problems of the information ecosystem and building a secure one. In the case of legal regulations limiting freedom of expression, such regulations must be prescribed by law, pursue a legitimate aim, and are necessary in a democratic society. Placing freedom of expression in the dichotomy of either truth or consequences is an approach that could neither be justified theoretically nor normatively.