The technological transformation experienced in this country and in the world with an incredible speed and the fact that this technology has spread to all areas of our lives have made it imperative that we go to new legal regulations in this field, as in all countries in the world.
The fact that the informatics field, which is clearly seen as an important need, has been brought to a legal basis and the studies started in this regard have been going on for about 10 years.
The rapid increase in crimes committed every day due to the lost time face, violations of the rights experienced and the use of legal gaps in this field, has made it a necessity to ensure the full security of our people in this new area, as well as in every field, and to protect their fundamental rights and freedoms. .
As a result of the works carried out with these feelings and thoughts and with a high sense of responsibility, the Information Crimes Law was finally moved from the Assembly Committees to the General Assembly of the Assembly and was approved by the majority of votes in our assembly.
In the field of informatics, the law aims to eliminate many important deficiencies in this field by introducing new regulations on issues that are not in our legislation with a universal and non-prejudicial understanding of personal rights and freedoms.
However, the Law; It has been criticized heavily for a few days, especially on the elements that are not included in the content of social media, and a conscious or unconscious information pollution is created in the public.
Certainly; In the age of technology developing at an incredible speed, there may be areas where this Law is not enough, and new regulations can be made by identifying the deficiencies that may occur or the places that need to be changed as the law enters into force.
In addition to all these, making constructive criticism to the existing law and making the law even better is an extremely democratic right.
However, if the goal is to eat grapes, it is essential to make discussions over text rather than speculation. It would be a great injustice for this society to discredit a text that has been exerted for years for the sake of political premium without even knowing its content.
Based on this point, I think it is useful to go over some of the controversial issues:
1. What is the essence of the law?
A. The law was enacted to address a serious gap in combating crime in informatics and other technology areas.
B. There is no new definition of crime in the law, other than those related to the field of informatics, which I will mention below.
C. The law does not grant unlimited power to the police or any other agency.
D. The law does not grant unjustified access to personal data or personal devices or the right to block internet access.
E. The law does not grant individuals access to communication devices without the police order.
F. The law does not grant people the right to send the devices they use in the computer or communication field to other countries or to have them examined there.
2. What are the new crimes brought by the IT Crimes Law?
A. Illegal access to information systems or protected data whose access is authorized,
B. Illegal interference to information systems or transmission of their data
C. Disrupting, deleting, blocking or changing the information system or its data illegally
D. Abuse of devices and data
E. Fraud on IT data
F. Fraud through the information system
G. Forgery of credit cards and / or debit cards using information systems
H. Crimes related to Child Pornography.
I. Violation of Intellectual Rights through Information Systems
3. To whom are obligations and responsibilities brought by the law?
a. Content Providers (natural or legal persons producing, modifying and providing any information or data presented to users over the electronic communication network)
b. Location (host) Providers (natural or legal persons who provide or operate systems that host services and content)
c. Access Providers (gaining usage opportunity by connecting to the electronic communication network by any means)
d. Collective Use Providers (legal entities that enable individuals to use the electronic communication network in a certain place and for a certain period of time)
to. Internet News Sites (publications that are outside the communication and personal or corporate information systems and that are open to the public and that present written, visual or audio content in the form of news and comments in the medium created on the internet)
4. Will Internet news sites fall into an illegal position or be censored by this Law?
No. Internet news sites will now be obliged to publish the name of the General / Responsible Editor and the contact information that identifies the broadcast center, otherwise, access to their publications may be blocked. This basic rule, which our print media is subject to, will now be applied to news sites that broadcast over the internet.
5. Are there any new crime elements in the law such as terrorism, insults/swearing on the internet, sharing personal data or bank information?
No. In addition, with this law, the police are not authorized to seize personal computers by arbitrarily raiding their homes, nor is it regulated by this law to be a crime of what is written on social media.
6. What does the phrase ‘strong suspicion’ in the law mean in terms of the powers it gives to the police?
Article 20 (1) (A) of the law; The content of our legislation says ‘the investigation officer’ can apply to the Court in order to prevent the publications that have a strong suspicion that it constitutes a crime.
The existence of the ‘strong suspicion’ expressed here is not sufficient to prevent access alone, it is regulated as a condition for applying only to prevent access to the court.
In our legislation on criminal procedure, the police already have the authority to act on suspicion. For example, under Article 14 of our Chapter 155 Code of Criminal Procedure, a police officer has’ suspected ‘reasonable reason to have been punished for a crime that may be punishable by death or imprisonment for more than two years’, or any item suspected to be reasonably theft in his possession. without any person, i.e., the Court, without a person who has reasonably suspected ‘committing a crime related to an article’ or ‘giving a name or address that he suspects for reasonable reasons and refuses to give his name and address or believes that the police officer is a lie. may arrest without a written instruction from. Here, the suspicion that could result in arrest is ‘reasonable’,
7. What does it mean for the relevant person or institution to apply to the Court to prevent access in order to prevent publications that do not constitute a crime but may be subject to civil cases?
As it is known, unlawfulness does not constitute a crime. For example, under our Law on Unfair Verbs, if a publication is made within the scope of ground and destiny, which is intended to harm or destroy or naturally damage the reputation of any person in terms of their profession, business, craft, occupation, occupation or position, He can apply to the court. With regard to such a publication, the Informatics Crimes Law gives individuals and institutions the right to apply to the Court only to prevent access to the publication.
8. After accessing the Court, will access to the publications be automatically blocked?
The process after filing an application to the court is bound by the criteria accepted in the world and the EU. Namely, if the Court is convinced that the violation of the law can not be eliminated by any other measure other than blocking the access, before deciding on the blocking of the access, the decision may be made to prevent the access. It is clearly stated in the relevant article that there is a reasonable ratio (proportionality principle) between the expected benefit to be obtained by the decision to block access and the loss that is likely to be granted, otherwise the decision to block the access will not be made.
Different countries have implemented different practices in this regard. The right to respect for private life and family life, protection of intellectual property rights, etc. There are many international documents that restrictions may be imposed for purposes, but their limits should also be limited and should be handled in conjunction with a court order and / or right to appeal to the court. For example, in the ‘EU Human Rights Guidelines on Freedom of Expression Online and Offline’ it states that the restrictions must be subjected to a 3-step test (the principle of legal basis, interest to be protected and proportionality).
(Any such restrictions, must pass the following three-part, cumulative test:
• They must be provided for by law, which is clear and accessible to everyone (principle of legal certainty, predictability and transparency)
• They must pursue one of the purposes set out in article 19.3 ICCPR, ie to protect the rights or reputations of others ; To protect national security, public order or public health or morals (principle of legitimacy)
• They must be proven necessary and as the least restrictive means required and commensurate with the purported aim (principles of necessity and proportionality).
The current article takes a step forward in order to minimize restrictive interpretations, and ‘It cannot be decided to prevent access to be restricted to the restriction of fundamental rights and freedoms in violation of Article 11 of the Constitution or against freedom of thought, speech and expression in Article 24 of the Constitution’. expresses clearly. Continuing in the same article, ‘The decision to prevent access can be made to prevent an important loss from occurring. It is also stated that while protecting the interests of a person or the interests of a small group, it is not possible to block access on a subject that is likely to harm many people. ”
9. Does the law equip the BTHK with interfering powers on freedom of expression to prevent access?
Without a court decision, BTHK can only take a decision to block it in limited cases and not exceeding 24 hours. If a decision cannot be obtained from the Court in this direction within 24 hours, the blocking of access must be removed immediately. Subject cases are the following;
a- Publications contrary to Article 63 of the Criminal Code
b- Crimes related to child pornography
c- Electronic bets without permission under the relevant legislation
d- Disclosing secrets of banks or customers in violation of the Banking Law
If we open it a little bit, for example, disclosing the secrets of banks or customers is already defined as a crime and punishable by our Banking Law. No new crime in this area is regulated with this article. Only if the subject bank information is published in the internet environment, the access to be blocked is opened. Regarding the crime, the police and court proceedings will work in the same way as they used to. No new regulation is introduced in this field with the passage of the Information Crimes Law.
10. As a result of reference to Article 63 of the Criminal Code, will everyone be prosecuted as ‘terrorists’?
The practice on this subject is what it was in the past. In our country, as in many countries, there is no anti-terrorism law.
Whether or not its content is important is another matter of discussion.
The closest regulation is 56-63 under the ‘Constitution and Crimes Against the Current Social Order’ section of the F154 Criminal Code.
These are the crimes defined among the articles.
The Information Crimes Law does not make any regulations in this area. With the reference given to Article 63, a new definition of crime is not made outside the existing, and it provides a 24-hour decision power to BTHK only for the purpose of preventing access.
There are no changes regarding the formations that defend any of the illegal acts mentioned in Article 63 and which are defined as “illegal association”.
11. With the IT Crime Law, will the Police be able to confiscate and not return computers, smart devices?
Any goods that are conquered according to the legislation in force are kept until the criminal proceedings initiated in that regard.
In practice, many electronic devices are not returned until the investigation and / or judicial process ends, and are often damaged due to storage conditions.
Although it is not completely possible to prevent this, the Information Crimes Law brings important and positive criteria.
Namely; According to Art 14, the Code of Criminal Procedure Code is applied regarding the confiscation of the information system and / or information used by the suspect or the accused, and if the Court decision cannot be taken within 24 hours of the confiscation, the confiscated information system and / or information data immediately will be returned.
‘ With this statement, an indefinite period is prevented before the police without a court order.
In addition, taking into account the personal protection, it was subjected to the decision of the Court to search, examine, examine the information system that was seized or if there was a password in the information data, to decrypt the password, to extract the image (forensic copy) from the data and to transcribe these records into text.
If necessary images are obtained, it is also arranged to return the confiscated information systems and / or information data within 3 months (max. 6 months extension) of the case.
12. Is the confidentiality of personal data reached within the scope of the investigation guaranteed by this Law?
Crimes related to the confidentiality and violation of personal data are detailed under the Law No. 32/2014 on the Protection of Private Life and the Secret Area of Life. In addition, if a person in the public service neglects or abuses his / her duty, it is possible for the Penal Code to be prosecuted under Articles 105 and 105A.