The relationship between the Presidential Government System and Instagram

As is known, Instagram was blocked from access by the decision of the Information and Communication Technologies Authority (BTK) dated August 2, 2024, and numbered 490.05.01.2024.-608903. In this way, Presidential Communications Director Fahrettin Altun sent a message to Instagram stating, "If censorship is to be applied in this country, we are the only ones who will do it." 

As everyone knows, we woke up on Friday morning to find that Instagram had been blocked. In other words, access to Instagram, which has 57 million users in Turkey, was blocked by the Information and Communication Technologies Authority (BTK). In its statement, the BTK stated that it had closed access to the social media platform Instagram on the grounds that it did not comply with "catalog crimes." In my opinion, this was just an excuse. However, it was clear that the real reason was the removal by Instagram of the condolence message posted by Presidential Communications Director Fahrettin Altun on Friday morning for Hamas Political Bureau Chief Ismail Haniyeh. In truth, our Communications Director, angry at Instagram for preventing him from exercising his freedom of expression, closed Instagram to access, saying, "Censorship is not done like that, it is done like this." 

I say it is an excuse because Instagram is a social media platform that has a representative office in Turkey. It is subject to Law No. 5651. In accordance with Law No. 5651, it publishes a transparency report every 6 months and submits these reports to the BTK. The latest transparency report regarding content removal requests for Instagram by the Meta Company was published on July 31, 2024. (That is, 2 days before Instagram was closed to access). In other words, the BTK examined this report 2 days before blocking access to Instagram. Emphasizing that the most requests were sent by the BTK according to the report, the Meta Company stated that it had applied sanctions to 2445 of the 2580 contents reported between January 1, 2024, and June 30, 2024, that is, 94%, and it was not explained in the report what was done regarding the content corresponding to the remaining 6%. In summary, it is understood that the BTK blocked access to the social media platform Instagram due to 135 posts whose content is unknown for the last 6 months. Or rather, we are expected to believe this. Considering that Instagram has at least 57 million users in Turkey alone and millions of contents are shared every day, it is contrary to the ordinary flow of life that it is completely closed on the pretext of catalog crimes specified in Article 8 of Law No. 5651 due to only 135 contents. It is precisely for this reason that we call it an "excuse." 

To give an example, the total number of automobiles in Turkey is 15 million 333 thousand 952. And let's say our Ministry of Transport has determined that only 135 of these vehicles have not been inspected. And let's assume that the Ministry of Transport has banned the 15 million-plus vehicles in Turkey from traffic just because of 135 uninspected vehicles. Wouldn't this be a huge injustice? This is exactly what the blocking of Instagram due to 135 contents is; it is a great disaster in terms of preventing the freedom of expression of 85 million people in the country. 

However, we are not surprised; in fact, the issue is not the arbitrary closure of Instagram. The real issue is the possibility that not only Instagram but everything can be closed by the decision of a single person, based on the fact that all powers are given to one person in the Presidential Government System. 

Another negative consequence of blocking access to the social media platform Instagram is on the economy. Buğra Gökçe, Head of the Istanbul Planning Agency (IPA), who calculated the cost of Instagram's closure to Turkey, pointed out that the daily cost of the platform remaining closed is 1.9 billion liras. To give an example from the public savings package; the total size of this package is 100 billion liras. In other words, in a scenario where Instagram remains closed for 52 days, Turkey will lose as much as the public savings package. Can there be compensation for this lost turnover? If we look at it from a purely legal perspective, the state is obliged to compensate for the damage arising from the acts and actions of the administration. The BTK took an action. If we can mathematically demonstrate the damage of this action, that is; if a company trading via Instagram is in a position to show its average daily turnover, and if its turnover has decreased in a way that can also be mathematically shown during the period it remained closed, it can demand the aforementioned loss from the state before administrative courts through a cancellation lawsuit as a full remedy action, and if Instagram is fully opened, only through a full remedy action. In this action, which is completely contrary to the law, the state must compensate for this damage. 

Our Presidential Communications Director, Mr. Fahrettin Altun, says, "Social media companies respect the laws of countries like America and Germany, and there is no problem there." I ask here, why do these companies in question respect the laws of these countries and not respect the laws of our country? 

Or is it really like that? Because as I explained above, we now know that this ban has nothing to do with social media companies not complying with our laws. Therefore, this situation that has emerged is nothing more than a reflection of the power struggle within the government or the testing of some things in advance. 

Let's say this foreign company does not respect the Law of the Republic of Turkey, but do you respect the laws of your own country and the decisions of the Constitutional Court? Is it only disrespect when others do not show the respect you do not show to your own laws? "Won't we ask, 'Why should foreigners respect those who do not respect their own laws?'" 

For example, on October 11, 2023, in file no. E.2020/76, the Constitutional Court decided that some amendments made to Law No. 5651 with various articles of the Law on Amendments to the Law on the Regulation of Publications Made on the Internet and Combating Crimes Committed Through These Publications No. 7253 were unconstitutional and should be annulled, and that the annulment provisions would enter into force nine months after the publication of the decision in the Official Gazette. 

In other words, the Constitutional Court concluded that Article 8, which gives the President the authority to block access and remove content regarding certain crimes without a finalized court decision, violates the presumption of innocence; and that Article 9, which regulates the blocking of access and removal of content based on the violation of personal rights, lacks certainty and leads to arbitrary decisions and disproportionate restrictions on freedom of expression and the press, and thus completely annulled some parts of Article 8 and Article 9 of the Internet Law. It gave the legislative body time to make a new regulation, and for this reason, it decided that this annulment provision would enter into force 9 months later, that is, in October 2024. 

Since the head of the BTK blocked Instagram according to Article 8 of Law No. 5651 and did not submit the access blocking decision it took within 48 hours to court approval, it is understood that the blocking was carried out according to the provision of Article 8, which the Constitutional Court annulled in January 2024. As lawyers, we also know that the "decisions on the removal of access blocking" given by Administrative Courts in this way were not implemented, that is, court decisions were not implemented by the administration either. In summary, if Turkey is a state of law, why are court decisions not implemented? Or, how acceptable is it—in a state that respects the law—to decide to completely ban Instagram based on a provision that the Constitutional Court has annulled for the reason I mentioned above? If we, as the state, do not respect court decisions ourselves or do not comply with the decisions of our Constitutional Court, how fair is it to expect a foreign company to comply with Turkish laws or court decisions? 

What I mean is that Turkey, within the Presidential Government System, has given all powers to the President, who is the head of the executive branch. This is the main problem being experienced. He was directly angered by the removal of the condolence messages regarding the death of Hamas Political Bureau Chief Ismail Haniyeh by Instagram and wanted this decision to be taken. Other statements made by the wing close to the government are only aimed at finding a legal cover for the banning decision taken by a single person. The constitutional rights of 57 million people have been suspended. First and foremost, this decision taken by the administration is not "proportionate." It is also contrary to many decisions previously taken by our Constitutional Court. 

The main reason we are experiencing these and similar problems is the Presidential Government System. This system has moved our country from a system of separation of powers, in other words, a system where powers balance and check each other, to a system of fusion of powers and established a "one-man government." Thus, our country has rapidly moved away from being a state of law in the last 7-8 years, and has drifted to a place where state institutions do not implement court decisions that do not suit them, and the administration can take arbitrary decisions. I think that the opposition should also see that there can be no normalization or softening within this system and should enlighten the entire society about exiting this system. 

This trend is not good.