The Law on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts No. 5651 (“Law No. 5651”) was amended with the amendments published in official gazette on July 31, 2020 (“Amendments”). According to the reasoning of the Amendments, it is aimed engage social network providers more actively in combat against illegal content which violates personal rights and, especially, right to privacy.
Social Network Providers
Definition of social network provider is included in the Law No. 5651. According to such definition, real persons or legal entities who enable users to create, view or share contents such as texts, images, recordings, location via internet for purpose of social interaction shall be a social network provider. Social network providers will have to comply with specific requirements to avoid administrative fines as per the Amendments. Enforcement date of the Amendments on social network providers is October 1, 2020.
Foreign Social Network Providers Have To Appoint a Representative
With the Amendments, foreign-based social network providers with more than one million daily accesses are obligated to appoint at least one representative in Turkey to perform duly necessary actions regarding court decisions, requests or other notifications directed to him from the Information and Communication Technologies Authority of Turkey (“Authority”), the Union of Access Providers, and judicial or administrative authorities, and to ensure fulfillment of other obligation stipulated under the Law No. 5651. If such representative is a real person, representative have to be a Turkish citizen. Social network providers have to notify identity and contact information of its representative to the Authority, and publish such contact information on its website. Nonfulfillment of this obligation is under various sanctions.
· If a social network provider does not fulfill its obligation to appoint a representative and notify it to the Authority within the period of thirty days granted by the Authority in its deficiency letter on non-fulfillment of obligation to appoint a representative, the first administrative fine worth TRY 10,000,000 shall be imposed to such social network provider.
· If such social network provider does not fulfill its obligation within thirty days after the date of notification of the first fine, the second administrative fine worth TRY 30,000,000 shall be imposed in addition to the first one worth TRY 10,000,000 by the president of the Authority (“President”).
· Following the second administrative fine, if such obligation is still not fulfilled within thirty days after the notification of the second fine, the President may impose a ban which shall prevent all real persons and legal entities who are taxpayers resident in Turkey from engaging in any transactions or contracts regarding advertisement with such social network provider.
· If such obligation is not fulfilled within three months after the advertisement ban, the President may apply to the criminal courts of peace for the request of deduction on related social network provider’s internet traffic bandwidth by fifty percent.
· Finally, the President may apply to the criminal courts of peace for the request of deduction on related social network provider’s internet traffic bandwidth by ninety percent if such obligation is not fulfilled within thirty days after the enforcement date of the decision rendered by the criminal courts of peace.
Obligations of Social Network Providers with More Than One Million Daily Access
Social network providers with more than one million daily accesses have to reply to applications which are made as per the Article 9 or 9/A of the Law No. 5651 within 48 hours. Such reply have to include a reasoning if the relevant application is refused. In case the obligation to reply is not fulfilled, an administrative fine worth TRY 5,000,000 shall be imposed. Social network providers have three months after the enforcement date of the Amendments to comply with requirements of the obligation to reply.
According to the Amendments, social network providers with more than one million daily accesses shall draft statistical reports for every six months regarding applications made by a real person or legal entity, institution, or organization within the scope of the Article 9 and 9/A of the Law No. 5651 and courts decisions on removal of the content or blocking the access which have been directed to them. Such reports shall be sent to the Authority and published in websites of social network providers without including any personal data. In case this obligation is not fulfilled, an administrative fine worth TRY 10,000,000 shall be imposed. First reports in this respect have to be directed to the Authority in June 2021.
Social network providers with more than one million daily accesses are under the obligation to take necessary measures to store any data of its users in Turkey. Therefore, such obligation indicates that relevant social network providers have to take necessary steps on localization of their servers. Although, any specific administrative fines is not stipulated yet in this respect, it is expected to be regulated in near future.
Removal of Content
Pursuant to the Article 8 of the Law No. 5651, in case of a broadcast made via internet is under enough doubt on constituting crimes, such as abuse of children or supply of hazardous substances for health, a decision to block the access may be rendered. With the Amendments, courts are now may decide to block the access to related website or the removal of relevant content. In conclusion, actions to be taken by courts in case of such circumstances are extended. Court decisions as per the Article 8 of the Law No. 5651 will be directed to relevant hosting, content, and access provider for performance of blocking the access or removal of the content.
According to the Amendments, hosting, content, and access providers have to fulfill the requirements of the decision which has been rendered by the judge of the criminal courts of peace and directed to them by the Authority within at least four hours.
With the Amendments, especially the ones regarding the Article 8 of the Law No. 5651, it is aimed to promote freedom of expression and information by engaging the removal of content for cases where partly removal of specific content from the related website is possible rather than blocking access to the website and all available content of it.
Pursuant to the Article 9 of the Law No. 5651, any real person or legal entity, institution, or organization claiming that their personal rights are violated by the content of a broadcast are entitled to request the blocking of access by applying to content provider, and, if content provider is not available, to hosting provider or by applying to the criminal courts of peace. In line with amendments made in the Article 8 of the Law No. 5651, scope of actions to be taken by courts as per the Article 9 of the Law No. 5651 also extended with the removal of content mechanism.
The Amendments also covers an application procedure for requests regarding not to be linked to several information on the internet. Accordingly, the judge of the criminal courts of peace may decide the name of relevant person who claims that its personal rights are violated by several websites to be not to be linked to such websites. The judge’s decision shall cover the search engines which will be notified regarding the de-linking decision.
More Notification Methods
Since most of the providers reside abroad, the necessity of quicker notification method redressed with the Amendments. Accordingly, it is stipulated that legal notifications regarding administrative fines may be made to providers in abroad with an e-mail or upon other communication channels reached from the information collected through IP address, domain name, communication channels available in the related website, or other similar sources.
Increase of Administrative Fines Regarding Hosting Provider
In order to increase the deterrence effect on providers and to provide full application of provisions of the Law No. 5651, the upper limit of administrative fines to be imposed pursuant to the Article 5(6) of the Law No. 5651 for nonfulfillment of obligation to notify being a hosting provider or other obligations of a hosting provider under the Law No. 5651 are increased from TRY 100,000 to TRY 10,000,000.
According to the Amendments, foreign social network providers have to appoint a representative and take necessary measures for localization until October 1, 2020. Yet, penalties in regard to the obligation to appoint a representative will not be imposed prior to the Authority’s deficiency letter reminding such obligation. Furthermore, social network providers with more than one million daily accesses have to take necessary steps regarding efficient reply system for applications as per the Article 9 or 9/A of the Law No. 5651. Accordingly, relevant social network providers have to complete their preparations for an efficient reply system until January 1, 2021. Moreover, first statistical reports regarding applications, removal of the content, and blocking the access have to be directed to the Authority in June 2021. Other amendments came into force on the date of July 31, 2020 and relevant providers should take into consideration such regulations in order to avoid any penalties.
Aslı Naz Ünlü