The Crime of Publicly Disseminating Misleading Information Within the Scope of Freedom of Expression (TCC ARTICLE 217/A)

Abstract

Freedom of expression, which is a fundamental human right, is a right protected both at the international and national level, which, in the words of the European Convention on Human Rights, covers freedom of opinion and freedom to receive and impart information and opinions, without interference by public authorities and regardless of national borders. However, in democratic societies, freedom of expression is not an absolute right and is accepted with certain conditions and limitations. Social media enables people to create and share content, allowing them to express their thoughts, experiences, and knowledge, and interact with others. While this participation strengthens freedom of expression, it is essential to prevent disinformation. The studies carried out in order to eliminate the serious drawbacks caused by the disinformation phenomenon on public order have led to a re-discussion of the limits of freedom of expression. In terms of Turkish law, especially with the enactment of Law No. 7148, commonly known as the Disinformation Law, it has been preferred to restrict the freedom of expression under certain conditions when “internal and external security, public order and public health of the country” are in question. The offence of publicly disseminating misleading information, which was added to Article 217/A of the Turkish Criminal Code with the aforementioned Law, has a problematic structure in terms of the proportionality of the restriction imposed on freedom of expression and its compliance with the general principles of criminal law.