Content and hosting providers must respond to take-down requests within 24 hours; access providers must comply with take-down orders within 4 hours
Internet censorship in Turkey is nothing new. Unofficial sources indicate that more than 37,000 websites have been blocked since 2007, when the Internet Law was first enacted. On February 6, 2014, the Turkish parliament adopted an omnibus bill amending several laws, including Law No. 5651, On Regulation of Internet Publication and Combatting Crimes Committed through Internet Publication, commonly known as the Internet Law. With the amendments, the Internet Law elevates government control and supervision of the Internet to an even higher level.
The new law immediately generated considerable controversy. Objections were raised not only by Turkish opposition parties and non-governmental organizations, but also by well-respected international institutions. The European Commission, the Committee to Protect Journalists (CPJ), the Organization for Security and Cooperation in Europe (OSCE), and Human Rights Watch, among others, have expressed concerns, primarily focusing on issues of freedom of speech, access to information, and online personal data privacy. The new law has also been criticized due to the lack of prior public consultation. As a consequence, a Constitutional Court challenge on the basis that the new law violates basic personal freedoms guaranteed under the Turkish Constitution is considered likely.
Despite opposition from both national and international institutions as well as civil protests in major Turkish cities, the President of Turkey approved the law on February 18, 2014, which took effect on February 19, 2014, upon publication in the Official Gazette.
What the new law says
- A broad definition of "prohibition of access" permits government denial of access by domain name, IP address, URL, or "similar methods."
- A new provision in Article 4 (Liability of Content Provider) requires content providers to submit information to the Presidency of Telecommunications under the Telecommunications Authority (the "Presidency") upon request. Similar provisions are also added to Article 5 (Liability of Hosting Provider) and Article 6 (Liability of Access Provider). As a result, hosting providers and access providers are also required to provide information to the Presidency. Content providers, hosting providers, and access providers must also implement measures ordered by the Presidency.
- A new provision in Article 5 obligates hosting providers to retain traffic information records for up to two years. A new article, Article 6/A, establishes the Access Providers Union to coordinate and implement denial of access orders. The Union will consist of all access providers authorized under the Electronic Communication Law. Any access provider refusing to be a member of the Union will be barred from operating in Turkey.
- All collective usage providers, both commercial and non-commercial, are obligated under a new provision in Article 7 (Obligations of Collective Usage Providers) to prohibit access to any content that constitutes a crime, and maintain a record of the usage. Additionally, commercial collective usage providers are further required to take measures to protect families and minors from harmful content, prevent crimes online, and detect perpetrators of such crimes.
- An amendment to Article 9 (Take-Down of Content and Prohibition of Access) is among the most controversial. The amendment entitles any real or legal person, as well as agencies and institutions, claiming infringement of rights from an online publication, to apply to the content provider, hosting provider or a Turkish court to demand the take-down of infringing content. Former Article 9 did not permit an aggrieved party to apply directly to a Turkish court. Under the new Article 9,content providers and hosting providers must respond to a take-down request, and a court must issue its decision, within 24 hours. The court is permitted to order the take-down of only the infringing content or section on the website through the URL, rather than the entire website. It has the right, however, to do so if it concludes that taking down only the infringing content would be insufficient to prevent the infringement. Upon being informed of a court take-down order, the Union is then required to alert all access providers to block access. Access providers must comply within four hours. If the infringing or similar content has spread to other websites, persons may apply directly to the Union for take-down of those websites as well.
- Newly added Article 9/A (Prohibition of Access Based on Privacy of Personal Life) sets forth that any person claiming his/her privacy has been infringed through an online publication may apply to the Presidency to request that access to the content be blocked. The Presidency forwards this request to the Union, and the Union then "urges" the access providers to prohibit access to the content through the URL. Access providers must comply within four hours. The person claiming privacy infringement must then apply to a Turkish criminal court within 24 hours of their application to the Presidency that access be blocked. The court must issue a decision within 48 hours and submit the decision to the Presidency, failing which the blocking of access is automatically revoked. The head of the Presidency is also entitled to order access blocked for privacy infringement.
The amendments to the Internet Law are intended to create a system in which all kinds of traffic information and data relating to personal use may be accessed by the Presidency. Anyone may now apply directly to a court to take down infringing content or a website without first contacting the content or hosting provider; further, the Presidency is empowered to take down any content for privacy infringement without a court decision, and access providers must block access within four hours of the Union's instruction.
It has been argued this new system does not meet international standards and is not in line with Turkey's commitments to OSCE and EU principles in terms of freedom of expression, independence andpluralism of the media and the free flow of information. The Turkish government, however, argues the amendments aspire to create a more secure online environment for all Internet users.
Actions to consider
Companies should be aware how these significant changes in the Internet Law may affect their online operations in Turkey, and take steps to ensure compliance.