The crime of spreading misleading information to the public and freedom of expression

Article 217/A, added to the Turkish Penal Code on October 13, 2022, introduces a new type of crime under the heading of "publicly spreading misleading information." The justification for the regulation states that it aims to prevent the negative effects of misinformation spread through digital communication tools on public order and public peace. In this respect, the article is not a crime of harm in the classical sense, but rather a crime of endangerment aimed at protecting public peace.

The legislator has not criminalized the mere sharing of information that is contrary to the truth; it also requires that the information in question be capable of disrupting public peace, be spread publicly, and that the perpetrator has the intent to do so. While these elements may appear to contain certain safeguards at first glance, the debates in practice begin precisely at this point.

This is because the concepts of "information contrary to the truth," "public peace," and "capability" (to disrupt public peace), which are at the center of the regulation, are open to very broad interpretations. Issues such as which information will be considered contrary to the truth, according to which criteria this assessment will be made, and how it will be determined that public peace has been endangered can lead to different interpretations in practice. In criminal law, individuals must be able to foresee in advance which actions may lead to criminal liability. For this reason, the ambiguity of the boundaries of these concepts brings with it various criticisms regarding the principles of certainty and predictability, which are extensions of the principle of legality.

Indeed, after the regulation came into effect, it was brought before the Constitutional Court, but the Court rejected the request for annulment. However, the reasoning of the decision included important assessments regarding the fact that the article should be interpreted narrowly so as not to unnecessarily restrict freedom of expression. Therefore, the debate is not limited only to the text of the norm; the real issue is how this norm will be interpreted in practice and within what limits it will be used.

One of the most important criticisms directed at Article 217/A is the possibility of creating a "self-censorship" effect on journalists and individuals who express opinions on issues of public interest. In human rights law and the case law of the European Court of Human Rights, this situation is often referred to as a "chilling effect." Regardless of whether individuals are punished, the mere existence of the threat of investigation can limit the exercise of freedom of expression. Especially for journalists, the inability to fully predict which news or statement will be evaluated as "misleading information" in the future can lead to the avoidance of reporting on certain topics.

However, in democratic societies, the duty of the press is not limited to conveying information verified by official authorities. Journalistic activity often involves investigating allegations of public interest, auditing public power, and bringing controversial issues to the agenda. For this reason, freedom of expression and the press is guaranteed not only for generally accepted or non-disturbing ideas, but also for critical, shocking, and controversial statements.

The effects of Article 217/A in practice have become more visible in recent years in investigations and prosecutions conducted against journalists. The process carried out against BirGün reporter İsmail Arı has emerged as one of the most current examples of these debates. Similarly, investigations have been opened against various journalists due to their news or social media posts, and long trial processes have been experienced in some files. The process carried out against DW Turkish reporter Alican Uludağ has also come to the public agenda as another example of these debates.

Of course, there is no serious disagreement that misinformation should be fought. However, the debate is concentrated on the point of what tools should be used to conduct this fight. According to many legal experts, criminal law is a tool that should be used as a last resort in democratic societies. It is also argued that methods such as public institutions providing fast and transparent information, improving media literacy, and strengthening public oversight could produce more effective results in the fight against misinformation.

The debate surrounding Article 217/A today is not just about the boundaries of a new type of crime. The real issue is how to establish the delicate balance between the necessity of fighting misinformation and freedom of expression and the press, which are indispensable elements of a democratic society. If this balance cannot be maintained, there will always be a risk that a penal norm introduced to protect public order will eventually turn into a tool that narrows the space for public debate. Courts can decide whether a piece of news is true or not. However, the fact that the threat of punishment begins to decide which topics can be discussed is a much greater problem for the rule of law.

Attorney Deniz Ali İlkem Demir