Written by Yaman Akdeniz, Professor of Law at the Faculty of Law, Istanbul Bilgi University and Co-founder of İFÖD.
This article will provide an overview of criminal investigations and prosecutions related to social media postings about the COVID-19 pandemic in Turkey, since the start of the health crisis. Broadly speaking, such social media postings include political comments criticising, or joking about, the government’s pandemic strategy and critical comments about the speeches and policies of the President of Turkey, among others.
The Ministry of the Interior publishes some but limited data in relation to criminal investigations involving social media postings in Turkey. As far as 2020 is concerned, 75,292 social media accounts were investigated and legal action was taken against 32,390 individuals. Subsequently, 2,397 people were detained and 77 were arrested within the scope of these investigations. In addition, 340,212 digital materials were examined in 2020. During 2021, the numbers almost doubled, with 146,167 social media accounts investigated and legal action taken against 60,051 people. Subsequently, 1,911 individuals were detained and 73 were arrested.
The Ministry of Interior does not specify in detail which crimes are the subject of these social media related investigations. However, their press releases suggest that these are primarily related to terror propaganda (article 7(2) of the Anti-Terror Law), insulting the President of Turkey or other public officials (article 299 and 125(3) of the Criminal Code), the crime of insulting the Turkish nation, the State of the Turkish Republic or the Organs and Institutions of the State (article 301 of the Criminal Code) and provoking/inciting hatred or hostility between groups of the population (article 216(1) of the Criminal Code); public degrading of a section of the population (article 216(2) of the Criminal Code) and public degrading of religious values of a section of the population (article 216(3) of the Criminal Code).
In March 2020, with the start of the COVID-19 pandemic and as the numbers of COVID-19 cases in Turkey increased rapidly, the Government faced widespread criticism on social media platforms about the delays in the strategy of combating the pandemic as well as measures taken. The Radio and Television Supreme Council also issued warning to radio and television broadcasters on 11.03.2020 and suggested that they should avoid “inciting fear among the public”. Some TV channels subsequently received administrative fines.
News reports suggested that criminal investigations were initiated with regards to social media activity. The Ministry of Interior published some statistics involving pandemic-related criminal investigations about social media postings. According to an initial statement on 06.04.2020, the Ministry of the Interior announced that 3,576 social media accounts were assessed throughout Turkey in relation to “provocative coronavirus content” between 15 March and 05 April, 2020. As a result of these assessments, 616 suspects were identified and 229 were detained. A subsequent announcement on 27.04.2020 through the Ministry’s Twitter account stated that, as of 27.04.2020, 6,362 social media accounts were assessed, 855 suspects were identified and 402 were detained. Finally, the Ministry announced on Twitter on 21.05.2020 that 10.011 social media accounts were assessed, 1,105 suspects were identified and 510 suspects were detained since 15.03.2020. Since 21.05.2020, no further statistics were published by the Ministry. News reports suggest that these investigations primarily involved the crimes of threats with the intention of causing fear and panic among the public (article 213 of the Criminal Code), provoking/inciting hatred or hostility between groups of the population (article 216(1) of the Criminal Code) as well as insulting public officials.
Among those who were subject to criminal investigations and detentions were journalists, as well as a lorry driver who was detained after sharing a video of himself on TikTok criticising the “stay home” calls during the initial stages of the COVID-19 pandemic. In the video, the driver stated that “It is not the virus that will kill me, but your system will do it”. The Interior Minister Süleyman Soylu, commented on the video by stating that there was “no sense in sharing posts that will provoke our nation and causing trouble for what the state does and the patience the nation displays at home”.
So far as investigated journalists are concerned, İsmet Çiğit, the editor-in-chief of a local newspaper from Kocaeli was detained over a report on coronavirus outbreak in Turkey, after he published a news article entitled “2 People Lose Their Lives Due to Corona in Sopalıon” 18.03.2020. Çiğit was not the only one who was detained or arrested, albeit for a short period of time, by the authorities during the first few weeks of the COVID-19 outbreak in Turkey. Article 213 of the Criminal Code with the crime of threats with the intention of causing fear and panic among the public was used as the basis of these detentions and investigations.
Writer and columnist Nurcan Baysal was also investigated due to her social media posts and articles about the pandemic related measures in Diyarbakır. More worryingly, journalist Hakan Aygün was arrested in April 2020 for a tweet in which he mocked President Erdoğan’s fundraising campaign to help the fight against the COVID-19 pandemic. Erdoğan had asked citizens to put money into a bank account, giving an international bank account number (“IBAN”). In a tweet Aygün posted on 31.03.2020, he made a wordplay on IBAN and “iman” which means “belief” in Turkish, a word mostly used in a religious context. He wrote about an imaginary “IBAN section” of Quran, saying “those who IBAN” and “those who don’t IBAN” would be “separated in the afterlife”. Aygün remained in detention until 06.05.2020 and an indictment was prepared.
In February 2021, the Constitutional Court decided that Aygün’s detention for “public incitement towards resentment and hostility”, “denigration” and “insult” breached his right to personal liberty and safety. In March 2021, Aygün received a suspended sentence of seven months and 15 days imprisonment after being found guilty of “inciting enmity or hatred” and “insulting religious values” subject to article 216(3) of the Criminal Code for his tweet.
Fatih Portakal, former Fox TV anchor, has also been prosecuted for a comment he made on Twitter about the government’s economic measures for the coronavirus pandemic. In early April 2020, in his tweet, Portakal stated that “he wouldn’t be surprised if the government imposed a National Tax,” referring to a practice during the country’s War of Independence in the early 1920s. The Banking Regulation and Supervision Agency (“BDDK”) lodged a criminal complaint subject to Article 74 of the Banking Law which intends to protect the reputation of the banks in Turkey by criminalising certain actions. Similarly, President Erdoğan also lodged a criminal complaint arguing that he was insulted by the tweet. Both complaints were joined by the Istanbul 46th Criminal Court of First Instance and facing three years imprisonment, Portakal was acquitted in March 2021 of both charges.
The issue of COVID-19 pandemic related criminal investigations spawned back in February 2022 subsequent to the announcement that both President Erdoğan and his wife Emine Erdoğan tested positive for the Omicron variant of COVID-19 and had mild symptoms. The President tweeted that “We are on duty. We will continue to work at home. We look forward to your prayers.” Many wished and prayed for him “to get well soon” through social media platforms, but not all. Some choose not to pray for the president’s health. Among others, a former Turkish Olympic swimmer Derya Büyükuncu tweeted that “He has COVID-19 and wants prayers. We’re praying, don’t worry. I’ve started making 20 pots of halva. I’ll give some to the entire neighbourhood when the time comes”. The irony of this tweet was that “halva” is a well-known Anatolian specialty, a type of sweet which is part of various celebrations including funerals in Turkey. However, the tweet was not taken lightly and Büyükuncu was immediately subject to a criminal investigation involving insulting the President of Turkey. The Chief Public Prosecutor’s Office in Istanbul stated that the tweet was regarded as criminal because Büyükuncu had indirectly wished for the president’s death by claiming to make “halva for the neighbourhood”. According to media reports, at least 36 investigations have been initiated in 12 separate cities in relation to 64 separate social media posts about the President’s health. Four people have been arrested and arrest warrants have been issued for four more, including Derya Büyükuncu. He has also been permanently suspended from the Swimming Federation of Turkey.
Derya Büyükuncu is just one of the thousands of individuals who face criminal investigations and prosecutions in Turkey for allegedly insulting the President. In terms of numbers, official statistics show that 160,189 criminal investigations were initiated during the President Erdoğan’s presidency era (2014-2020) as of end of 2020. During the same period, 35.507 persons were prosecuted, 12,881 persons were found guilty, on top of that 11,913 received suspension of the pronouncement of the judgment (“HAGB” in Turkish) pursuant to article 231 of the Criminal Procedure Act (“CPA”), while only 5,660 persons received “not guilty” verdicts. Out of the 12,881 persons found guilty, 3,625 were imprisoned, 1,691 received suspended imprisonment sentences, 1,073 received criminal fines, 1,691 received security measures and 3,466 received other criminal sanctions. 106 of the guilty verdicts involved children under the age of 18 and 10 of those received imprisonment sentences.
Anything from a trivial social media sharing to liking content shared by others on Facebook can result with a criminal investigation and/or prosecution involving insulting the President in Turkey. Journalist Sedef Kabaş was arrested in 22.02.2022 because of a TV speech on 14.02.2022, while an arrest order on Derya Büyükuncu is pending. However, while the Turkish prosecutors investigate thousands of such alleged crimes on a yearly basis, the European Court’s jurisprudence is clear. The Court consistently held that “the limits of acceptable criticism are wider as regards a politician than as regards a private individuals”.  A politician inevitably and knowingly lays themselves open to close scrutiny of their every word and deed by both journalists and the public at large, and they must display a greater degree of tolerance, especially when they themselves make public statements that are susceptible of criticism. Moreover, according to the Court, the provision of increased protection by means of a special law on insults or by the imposition of special or higher criminal penalties against insult or defamation in particular by the press will not, as a rule, be in keeping with the spirit of the Convention and with Article 10.
In fact, in October 2021, in the case of Vedat Şorli v. Turkey the Court ruled that such a privileged protection cannot be provided especially to the heads of state, prime ministers, ministers or other high level politicians as the State’s interest in protecting the reputation of its own head of State cannot serve as justification for affording that individual privileged status or special protection vis-à-vis the right to convey information and opinions concerning them. This meant that the violation of the applicant’s rights under Article 10 of the Convention stemmed from a problem with the drafting and application of the provision in question. Consequently, the Court held that bringing the relevant domestic law into line with Article 10 of the Convention would constitute an appropriate form of redress making it possible to put an end to the violation found.
The Turkish investigations and prosecutions whether related to the COVID-19 pandemic, insulting the President of Turkey, or both, have turned into a system of intimidation designed to silence dissent. Certain topics or people including politicians have become untouchable. Freedom of expression has always been in danger in Turkey and interference with this fundamental right is nothing new. However, the magnitude of the current investigations and prosecutions is something else. In Turkey, the basic rule that “you should tolerate criticism even harsh criticism if you are in politics” has been reversed and became “shut up, do not criticise or you will be prosecuted”. It will take many years to assess the full impact of the COVID-19 related criminal investigations and prosecutions, as the cases slowly go through the judicial system.
 See Anadolu Ajansı, “RTÜK’ten koronavirüs yayınlarında yasaları ihlal edenlere yaptırım geldi,” 25.03.2020, at https://www.aa.com.tr/tr/koronavirus/rtukten-koronavirus-yayinlarinda-yasalari-ihlal-edenlere-yaptirim-geldi/1779169. See further Bianet, “Two broadcasters fined over guests criticizing government policies,” 14.08.2020, at https://bianet.org/english/freedom-of-expression/228989-two-broadcasters-fined-over-guests-criticizing-government-policies
 See https://www.icisleri.gov.tr/3576-adet-sosyal-medya-hesabi-incelendi-229-sahis-yakalandi
 See https://twitter.com/TC_icisleri/status/1254714150724538368
 See https://twitter.com/TC_icisleri/status/1263498305125978112
 Bianet, “Briefly Detained for ‘Stay Home’ Video, Truck Driver Yılmaz: I Think I Lose My Job, Too,” 30.03.2020, at https://m.bianet.org/bianet/labor/222198-briefly-detained-for-stay-home-video-truck-driver-yilmaz-i-think-i-lose-my-job-too; Bianet, “Interior Minister Soylu: We Don’t Hesitate to Take Any Precautions,” 30.03.2020, at https://m.bianet.org/bianet/politics/222172-interior-minister-soylu-we-don-t-hesitate-to-take-any-precautions
 See generally CHP Vice Chair Gülizar Biçer Karaca’s report on “Pandemic and Press Freedom” at https://cdn.chp.org.tr/iys/eposta/Attachment/12507_pandemibasinozgurlugu_1.pdf
 Bianet, “We No Longer Chase After Coronavirus News After Being Detained,” 23.03.2020, at https://m.bianet.org/bianet/health/221825-we-no-longer-chase-after-coronavirus-news-after-being-detained
 See further RSF, “Turkish journalists arrested for reporting Covid-19 cases,” 11.05.2020, at https://rsf.org/en/news/turkish-journalists-arrested-reporting-covid-19-cases
 Bianet, “Writer Nurcan Baysal Deposed over Coronavirus Articles,” 31.03.2020, at https://bianet.org/english/freedom-of-expression/222257-writer-nurcan-baysal-deposed-over-coronavirus-posts-articles
 Bianet, “Journalist Hakan Aygün Arrested for Mocking President’s Fundraising Campaign,” 06.04.2020, at https://m.bianet.org/bianet/media/222525-journalist-hakan-aygun-arrested-for-mocking-president-s-fundraising-campaign
 Duvar English, “Turkish journalist Hakan Aygün sentenced to prison for making religious pun,” 16.03.2021, at https://www.duvarenglish.com/turkish-journalist-hakan-aygun-sentenced-to-prison-for-making-religious-pun-news-56650. See further See https://mediamonitoringdatabase.org/journalist-hakan-aygun-charges-on-provoking-public-to-hatred-hostility-or-degrading-and-insult/
 See generally https://mediamonitoringdatabase.org/a-criminal-complaint-against-fox-tv-anchor-fatih-portakal-by-president-erdogan-and-bddk/
 Article 74 stipulates that “no real or legal person shall intentionally damage the reputation, prestige or assets of a bank or disseminate inaccurate news either using any means of communication defined in the Press Law No 5187 or radio, television, video, Internet, cable TV or electronic data communication devices and similar tools.”
 Evrensel, “Fatih Portakal, 3 yıl hapis istemiyle yargılandığı davadan beraat etti,” 02.03.2021, at https://www.evrensel.net/haber/427184/fatih-portakal-3-yil-hapis-istemiyle-yargilandigi-davadan-beraat-etti
 The Guardian, “Turkish president Recep Tayyip Erdoğan tests positive for Covid,” 05.02.2022, at https://www.theguardian.com/world/2022/feb/05/turkish-president-recep-tayyip-erdogan-tests-positive-for-covid
 DW, “Turkey marshals law to defend Recep Tayyip Erdogan’s honor,” 12.02.2022, at https://www.dw.com/en/turkey-marshals-law-to-defend-recep-tayyip-erdogans-honor/a-60733191
 Criminal investigations were initiated by public prosecutors in Ankara, Antalya, Bursa, Çanakkale, İstanbul, İzmir, Karabük, Kocaeli, Samsun, Şırnak, Tekirdağ and Karaman.
 Fedchenko v. Russia, no. 33333/04, 11.2.2010, § 33; Tuşalp v. Turkey, no. 32131/08, 21.2.2012, § 45.
 Lopes Gomes Da Silva v. Portugal, no. 37698/97, 28.9.2000, § 30.
 Artun and Güvener v. Turkey, no. 75510/01, 26.7. 2007, § 31; Önal v. Turkey (no. 2), no. 44982/07, 02.7.2019; Otegi Mondragon v. Spain, no. 2034/07, 15.3.2011; Stern Taulats and Roura Capellara v. Spain, no. 51168/15, 13.3.2018.
 Vedat Şorli v. Turkey, no. 42048/19, 19.10.2021. In 2017 the applicant was sentenced to a prison term of 11 months and 20 days (with delivery of the judgment suspended for five years) for insulting the President of the Republic, on account of two posts he had shared on his Facebook account. He was placed in pre-trial detention for two months and two days. The first post, which was shared in 2014, consisted of a caricature featuring the former US President Barack Obama kissing the President of the Turkish Republic, who was depicted in female dress. A speech bubble above the image of the President of the Republic contained the following words written in Kurdish: “Will you register ownership of Syria in my name, my dear husband?”. The second post, shared in 2016, contained photos of the President of the Republic and the former Prime Minister of Turkey, beneath which the following comments were written: “May your blood- fuelled power be buried in the depths of the earth/May the seats you hold on to by taking lives be buried in the depths of the earth/May the lives of luxury you lead thanks to stolen dreams be buried in the depths of the earth/May your presidency, your power and your ambitions be buried in the depths of the earth”.
 Tuşalp v. Turkey, no. 32131/08, 21.2.2012; Turhan v. Turkey, no. 48176/99, 19.5.2005, § 25.
 See, mutatis mutandis, Colombani and Others v. France, no. 51279/99, § 68, ECHR 2002-V; Artun and Güvener v. Turkey, no. 75510/01, 26.7. 2007, § 31; Otegi Mondragon v. Spain, no. 2034/07, 15.3.2011, § 55.
 See further İFÖD, Third Party Intervention in the case of Vedat Şorli v. Turkey (no. 42048/19), at https://ifade.org.tr/reports/IFOD_ECtHR_Vedat_Sorli_Third_Party_Intervention.pdf