They said journalists wouldn't be victims, yet 33 journalists have been investigated

As is known, Article 29 of the omnibus law titled "Law on Amendments to the Press Law and Certain Other Laws" dated October 13, 2022, has become a nightmare for critical journalists. Article 217/A, which was added to the Turkish Penal Code with this provision, is titled "Publicly spreading misleading information." Since I have previously published an article on this matter in NewsLabTurkey, I will not go into the details.

Fervent defenders of the legal provision had repeatedly stated that this article would not be applied to journalists. For example, legal expert Prof. Dr. Selami Kuran had said: "Accordingly, not every untrue news report, fake news, or lie constitutes a crime. In addition to the untrue news, there must be intent, that is, a special intent specifically aimed at creating fear, anxiety, or panic among the public. The Public Prosecutor has the burden of proving the existence of this special intent. This is not easy. Furthermore, the condition of suitability points to a concrete and imminent danger capable of disrupting public peace."

The then AK Party Group Deputy Chairman Mahir Ünal had also insistently emphasized that journalists would not be victims: "Disinformation is not just spreading untrue information. Disinformation is the act of spreading the sum of these in a coordinated manner, aimed at a common goal, within a certain period. The judiciary will decide whether information or news is misleading. So, what are the required conditions? For the crime to be constituted, the presence of all five elements will be sought. That is; 1) The published news must not be true. 2) It must be untrue news regarding the country's security and public health. 3) It must carry the intent to create panic, fear, and anxiety among the public. 4) It must be capable of disrupting public peace. 5) These must be done publicly. I underline, the coexistence of all five elements will be sought. If three of these five elements are present, it will not constitute a crime."

Journalism professional organizations and academics like myself who follow these issues closely, however, argued that the legal provision would function like a censorship law and that it would become easier to make accusations against journalists. And indeed, that is what happened. As far as I can determine, exactly 33 journalists have been the subject of the accusation of "publicly spreading misleading information" specified in this article. Investigations have been opened against some of them, some were detained, and some were arrested. First, to make a note for history, I will share these names and the information regarding which news reports they were accused of.

List of journalists who have undergone investigation

? Hüsniye Karakoyun and Mahmut Karakoyun: Within the scope of this law, which is called the censorship law by journalists, the Tunceli Chief Public Prosecutor's Office issued a decision of non-prosecution regarding the criminal complaint filed against Hüsniye Karakoyun, owner of Tunceli Emek Newspaper, and Mahmut Karakoyun, the newspaper's Responsible Managing Editor. The prosecutor, who issued the non-prosecution decision for the complaint filed regarding the news titled "Official Opening Ceremony Held for Five Portable Toilets in Tunceli," stated as a reason that the disinformation law was not yet in effect on October 12, 2022, the date the news was published, and that there was social interest and public benefit in the publication of the news.

? Sinan Aygül: The first journalist to be affected by the censorship law was Sinan Aygül, President of the Bitlis Journalists Association. Aygül had made posts on his Twitter account regarding an alleged sexual harassment case in Bitlis, and then deleted these tweets and apologized, saying he was mistaken. Despite this, Sinan Aygül was abruptly detained on December 14, then arrested, and ultimately received a 10-month sentence. This sentence was also the first sentence given under the disinformation article.

? Aslıhan Gençay: A decision of non-prosecution was issued on April 10, 2023, in the investigation launched against journalist Aslıhan Gençay with the accusation of TCK 217/A "Publicly spreading misleading information," based on her news titled "The Never-Ending Strip Search" published on the news site Gazete Davul on December 29, 2022.

? Oktay Candemir: An investigation was launched against journalist Oktay Candemir, who reported on a sexual abuse incident in the Muradiye district of Van, with the accusation of "Publicly spreading misleading information."

? Mehmet Güleş: Journalist Mehmet Güleş underwent an investigation due to an interview he conducted in the earthquake zone. In his police statement, Güleş was asked about allegations that the person he interviewed used expressions such as "There is no AFAD here, no UMKE here. Here, the people are fighting with their own means. Our people have been left alone." Journalist Güleş was released with a requirement to sign in every day of the week and a ban on traveling abroad.

? Oğuzhan Uğur: An investigation was launched against YouTuber Oğuzhan Uğur for the crime of "Publicly spreading misleading information," on the grounds that some posts made from the Babala TV account, which he owns, caused fear and panic among citizens, and that there were disruptions in search and rescue efforts due to this.

? Mir Ali Koçer: Freelance journalist Mir Ali Koçer was investigated due to his reports after the earthquake in Diyarbakır, according to BBC Turkish's news on February 24. According to the news, he was asked to come to the police station while working in the field, and when he went to the station, he was told that an investigation had been opened against him under the disinformation law. Koçer had explained that the police questioned him about the news he filed from the earthquake zones and accused him of spreading false information.

? Ali İmat and İbrahim İmat: These two local journalists from Osmaniye were arrested on February 27 on charges of "Publicly spreading misleading information" due to their posts regarding the fact that tents arriving for earthquake victims were being kept waiting. These two brothers were released by the judge's decision at the first court hearing they attended 1 month after being arrested.

? Ahmet Sesli: Journalist Ahmet Sesli was called to give a statement on February 28 on charges of committing disinformation due to some posts he made on his Twitter account on February 15. In his posts, Sesli had implied that the number of those who died in the earthquake was higher than what was announced by AFAD.

? Gökhan Özbek: Journalist Gökhan Özbek was detained on March 1 on the 23 Derece channel on charges of committing disinformation. Özbek had announced his detention on his social media account. In the statement made by the journalist's lawyer, it was said, "Gökhan Özbek is only being accused for the news he made on the 23 Derece channel. Among the accusations are even visuals consisting of reporting the statements of many people from earthquake victims to members of parliament. It is unbelievable! He is being kept in detention just because he is doing journalism. The news reports are interpreted in a way that has no concrete basis, with accusations such as 'This was implied,' 'That was tried to be said.'" Journalist Özbek was released after his interrogation.

? Fırat Bulut: Journalist Fırat Bulut was detained at the airport upon his return to Ankara after reporting from the earthquake zone for a month. Bulut announced his detention on his social media account with the following expressions: "I have been reporting in the earthquake zone for a month. I was detained at Ankara Esenboğa where I arrived this evening. The Bingöl Criminal Court of Peace has opened an investigation against me for publicly spreading false information. They were not there during the earthquake, they are trying to silence me with an investigation." Fırat Bulut was released after his interrogation.

? Canan Kaya: The Istanbul Anatolian Chief Public Prosecutor's Office launched an investigation against journalist Canan Kaya on February 13, 2023, on the charge of "Publicly spreading misleading information", citing the earthquake broadcast she made on her YouTube channel. Stating that the allegation that "AFAD's Regional Logistics Warehouse did not work for four days," which was the subject of the investigation, was also being researched by CHP MP Abdurrahman Tutdere, Kaya said that the subject had news value. Kaya stated that she hosted journalist Abdullah Aslan, who works in Adıyaman, on her broadcast for this reason."

? İsmail Arı: Journalist İsmail Arı gave a statement to the prosecutor on charges of "Publicly spreading misleading information" due to his news titled "They are officially selling death, not houses" published in BirGün on January 29, 2023. In the news, which was published about a week before the earthquake and for which the Güngören Municipality filed a criminal complaint, information was given that the Istanbul Metropolitan Municipality had built 96 apartments and 9 shops on a plot of land that it had objected to, saying, "A disaster will occur in the first earthquake. The ground is a swamp."

An investigation was also launched against İsmail Arı on March 21, this time upon the complaint of the Red Crescent (Kızılay), on charges of committing disinformation due to his news titled "They poisoned the public" published in BirGün.

? Merdan Yanardağ: An investigation was opened against journalist Merdan Yanardağ on May 12 on the allegation of committing disinformation due to a post he made on his social media account. Yanardağ had written the following in his post: "I think it is necessary to share with the public - even if it is at a late hour - an important event that will deeply affect Turkey's political and social life. Because I trusted my source. It is stated that a group that will assassinate Kemal Kılıçdaroğlu has entered Turkey from Georgia."

? Ahmet Kanbal: An investigation was opened against journalist Ahmet Kanbal on charges of "Publicly spreading misleading information" due to his post on his social media account on May 14, which read, "From Mardin; Ballot box number 1363 has disappeared... A search for the ballot box president and the ballot bag has been initiated..." However, party lawyers had submitted a petition to the District Election Board Presidency regarding the disappearance of the ballot box.

? Ruşen Takva: A lawsuit was filed against journalist Ruşen Takva on May 22 on charges of committing disinformation due to a post he made on his social media account on December 8, 2022. Ruşen Takva had written the following in the post in question: "The city center was in turmoil and shopkeepers closed their shutters after the allegation that the Hakkari MHP Provincial Chairman shot a person in the middle of the bazaar. After the incident, both a relative and a close bodyguard of the MHP Provincial Chairman surrendered, saying 'I shot him.' The investigation is ongoing." The first hearing of the lawsuit filed against journalist Ruşen Takva was held on July 19. Looking at the incident that took place, the posts about the incident, and the lawsuit filed, it appears that the journalist could receive a sentence due to his journalistic activities.

? Yüsra Batıhan: An investigation was opened against journalist Yüsra Batıhan by the Ankara Chief Public Prosecutor's Office on the allegation of "publicly spreading misleading information," citing her social media posts regarding the Kahramanmaraş-centered earthquakes that occurred on February 6.

? Serdar Akinan: Journalist Serdar Akinan was detained on April 19, 2023, on charges of "publicly spreading misleading information," citing the broadcasts he made on his YouTube channel. Akinan was released on April 20, 2023, with a ban on traveling abroad and judicial control conditions.

? Emre Orman: Journalist Emre Orman, in a post he made on his X account on February 12, 2023, conveyed the statement made by the Progressive Lawyers Association (ÇHD) regarding the fact that a citizen named Ahmet Güreşçi was tortured to death in the gendarmerie station. Upon this post, a decision of non-prosecution was issued on May 5, 2023, in the investigation conducted against Emre Orman on suspicion of "publicly insulting the state's military organization," "fabricating a crime," and "publicly spreading misleading information."

? Sıddık Güler: An investigation was launched against Sıddık Güler, Editor-in-Chief of the local news site Serhat News in Van, on charges of "publicly spreading misleading information" upon the complaint of AKP Van MP Kayhan Türkmenoğlu, who was not mentioned in the news, due to the news titled "Did the AKP MP set a trap for the Van Provincial Director of Culture and Tourism?" published on June 19, 2023.

? Onur Öncü: Artı TV presenter Onur Öncü gave a statement on September 13, 2023, because he shared on X the allegation that "votes cast for the Green Left Party in various ballot boxes in Hakkari, Diyarbakır, and Urfa were written to the MHP" in the first round of the Presidential election. An investigation had been launched against journalist Öncü within the scope of the "crime of publicly spreading misleading information."

? İlknur Bilir: Journalist İlknur Bilir was detained on September 16, 2023, on charges of "publicly spreading misleading information" with her news posts made during the February 6 earthquakes. Bilir was released after giving her statement to the prosecutor.

? Batuhan Çolak: Batuhan Çolak, the owner of the social media account named Aykırı and the Editor-in-Chief of the news site published under this name, was detained on September 20, 2023, on the grounds that he made posts against refugees and asylum seekers. Çolak was arrested on September 24 on charges of "Publicly spreading misleading information" and "publicly inciting the public to hatred and hostility." Çolak was released by the court on October 27, 2023.

? Süha Çardaklı: Süha Çardaklı, the owner of the social media account named Ajans Muhbir, was arrested on September 24 after being detained on the same day (September 20, 2023) as Batuhan Çolak on the same charges. Although Batuhan Çolak was released on October 27, Süha Çardaklı's request for release was rejected. Çardaklı had also been arrested on charges of "Publicly spreading misleading information" and "publicly inciting the public to hatred and hostility."

? Tolga Şardan: Journalist Tolga Şardan, who worked as a security and judiciary reporter for many years at Milliyet newspaper, was first detained and then arrested on charges of "Publicly spreading misleading information", citing his article titled "What is in the 'judiciary report' that the MIT presented to the Presidency?" published on T24 on November 1, 2023. An access block was imposed on the article on November 2, 2023. Tolga Şardan was released on November 6, 2023, with the condition of not traveling abroad, as a result of the objection made to the court.

? Dinçer Gökçe: Halktv.com.tr Managing Editor Dinçer Gökçe was first detained on November 1, 2023, on charges of "Publicly spreading misleading information" due to a news report he made, and then released with judicial control conditions.

? Cengiz Erdinç: Kısa Dalga writer journalist Cengiz Erdinç was detained on November 2, 2023, on charges of "publicly spreading misleading information." From Erdinç's interrogation, it is understood that an X post he made on October 31 was cited as the reason. Cengiz Erdinç was released on November 3 with judicial control conditions and a ban on traveling abroad.

? Uğur Koç, Uğur Şahin and İsmail Arı: Upon the complaint of Fatih Erdoğan, the owner of Pasifik İnşaat, an investigation was launched against 3 BirGün employee journalists on charges of "publicly spreading misleading information."

? Evrim Kepenek: An investigation was launched against Bianet editor journalist Evrim Kepenek on November 2, 2023, on charges of "publicly spreading misleading information" due to the posts she made during the earthquake disaster that occurred on February 6. Journalist Evrim Kepenek gave her statement on November 3, 2023.

The Constitutional Court may rule in favor of press freedom

The Constitutional Court will discuss the request for the annulment and suspension of the execution of Article 217/A of the TCK tomorrow (November 8, 2023). Journalism organizations are making efforts and issuing statements for the annulment of this censorship article. I think the Constitutional Court will annul this article for two reasons. The first of these is that the legal provision creates a "chilling effect" on journalists. For us to be able to say that press freedom exists in the country, journalists must be able to make news and comments without the fear of being tried. This legal provision has created a fear of being tried among journalists.

The examples also show that this fear is not groundless. The second reason is the ambiguity in the legal provision, the lack of objective criteria. For example, the fact that a news report has been denied is not an indication that it is a lie. From time to time, administrators can deny the existence of practices they do not like. In addition, the issue of intentional lies and false news should be evaluated separately. Moreover, I never believe that a real journalist, a journalist who knows the honor of the journalism profession, could make intentional fake news. We need to defend journalists and journalism.

I hope the Constitutional Court will make a decision tomorrow (today) that relieves journalists and reminds them of the importance of journalism.

News Source: 12punto