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1) The Concepts of Disinformation and Fake News Unintentional false information within a news report can be defined as misinformation, while intentional false information constitutes disinformation [1]. Even if information is presented unintentionally, if it is not rectified after notice has been given, the situation may thereafter be deemed intentional, possessing the character of disinformation. Consequently, a news report constituting disinformation may be broadly described as 'fake news'.
2) The Post-Truth Era and Disinformation-Characterized News Today, humanity is exposed to a vast amount of information via the internet that requires verification; among all this information, individuals are able to accept whatever aligns with their minds as true, effectively creating a virtual reality in their minds. The concept utilized in relation to this is the post-truth era. Fake news causes both society to acquire false information and leads to the violation of values concerning the state-society if the news pertains to the public, or personal values if it concerns individuals.
Fake news is one of the areas that requires the utmost attention, particularly in our country. Indeed, according to research, Turkey is among the countries where fake news is most widely disseminated [2]. The subject is of such paramount importance that the "development of mechanisms to ensure the sharing of accurate and up-to-date information on the internet and social media" was established as one of the primary targets within the 2020-2023 National Cybersecurity Strategy and Action Plan.
3) Freedom of the Press Does Not Apply to Disinformation-Characterized News For freedom of the press to apply, the person reporting the news must execute all verification mechanisms within their power—though perhaps not to the extent of a prosecutor—before publishing the report. Consequently, a member of the press who includes gossip, information of dubious accuracy, or personal opinions as reality within a news report, or who deliberately provides untrue/fake information, shall not benefit from the privilege of freedom of the press, and their report shall be unlawful (cf. Constitutional Court [AYM], Application of Çetin Doğan, App. No: 2014/3494).
This situation is also expressed in the first article of the General Assembly Resolution No. 129 on Press Ethics Principles of the Press Advertisement Institution, which states: "Journalism, being a public service, cannot be made a tool for personal or immoral aims and interests, and cannot be used in a manner contrary to the public interest. In news and the commentary of events, intentional deviation through distortion, misrepresentation, or abbreviation is prohibited. News whose accuracy may be subject to doubt and whose investigation lies within the possibilities of journalism cannot be published without being investigated and verified."
4) Legal and Criminal Liability Arising from Disinformation and Blocking Access to/Removal of News The first line of defense in combating disinformation consists of official and unofficial verification platforms. These play a vital role both in delivering accurate information to the public and in detecting disinformation to pave the way for legal remedies. Ultimately, however, sanctions are delivered through the judicial system.
Against news characterized as disinformation, claims for compensation can be brought through lawsuits protecting personal rights and actions concerning unfair competition. Furthermore, blocking access to and the removal of content can also be requested through these lawsuits. As the Constitutional Court has stated, fake news generally violates personal rights (AYM, Application of Mehmet Doğan Uğurlu et al., App. No: 2015/954). However, it must be emphasized that this is not a general rule applicable in every instance; in exceptional circumstances, it is also possible for fake news not to violate any personal rights. Cf. “...it is not possible to decide on blocking access to a publication made over the internet, which is the subject of the application, solely on the grounds that it is contrary to the truth.” (19th Criminal Chamber 2017/3258 E. 2018/410 K.).
Our legislation also regulates specific offenses directed at news intended to cause disinformation. Examples of these include Articles 323 (disseminating fake news in time of war) and 237 (influencing prices) of the Turkish Penal Code (TPC), along with the norms under Article 107/2 of the Capital Markets Law (SPK). Under certain provisions, such as Article 74 of the Banking Law, such news is prohibited exclusively with respect to certain fields. The most specific example of this matter in our law is the offense of publicly disseminating misleading information under Article 217/A of the TPC.
Furthermore, Articles 8 and 8/A of Law No. 5651 contain provisions regarding decisions to block access/remove content and sanctions connected to news characterized as disinformation. There are criminal and administrative sanctions for failing to comply with access blocking/content removal decisions issued regarding disinformation news content falling within the scope of the relevant regulations.
5) Liability Arising from the Personal Data Protection Law (KVKK) Disinformation may also violate rights concerning personal data. The principle of "erasure or rectification of inaccurate personal data" regulated under Article 5 of the GDPR, and the corresponding "data subject's right to erasure/rectification/completion" regulated under Article 16 of the GDPR, are governed under Articles 4 and 11 of the KVKK in our legislation.
Internet news sites are considered data controllers under the KVKK, and the unlawful sharing of personal data is subject to sanctions. Since freedom of the press cannot apply to news content characterized as disinformation, and in the absence of consent regarding personal data, rulings of the Board exist determining that data must be removed and that administrative sanctions shall be imposed otherwise (Cf. KVKK 2021/989).
6) Obligation of Rectification Arising from the Press Law The constitutional right of rectification and reply is detailed in Article 14 of the Press Law, and internet news sites registered in the official registry have also been included in this process. Accordingly, if the news site fails to comply with an application for the right of rectification and reply submitted in accordance with the rules by the relevant party regarding the disinformation-characterized news, the aggrieved party may initiate a lawsuit. Failure to comply with this decision is regulated as an offense under the law.
[1] European Journalism Centre, Verification Handbook on Disinformation and Media Manipulation, Editor: Craig Silverman, Trans: Teyit.org (Translation Editor: Mert Can Yılmaz), 2020, p. 13.
