Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed Through such Broadcasts (“Internet Law”) governs the obligations and liability of content providers, hosting providers, access providers, and public use providers and includes provisions on to tackle illegal content on the Internet. While the Internet Law has been regulating the removal of illegal content and blocking access to such content, Turkey moved to regulate social networks following the trends seen in the EU and across the globe, on the grounds that the existing legal processes are insufficient for regulating social media content, especially where foreign social network providers are concerned.
The amendment to the Internet Law, adopted on 28 July 2020, introduces “Social Network Providers” as a new actor subject to the Internet Law and sets out significant obligations for social network providers, which are accessed from Turkey more than 1 million times daily, including appointing a representative in Turkey and data localization. The amendments concerning social network providers will enter into force on 1 October 2020 and the remaining amendments will enter into force on the date of their publication in the Official Gazette.
Social Network Providers
The amendment defines the term “social network provider” as “natural or legal person who enable users to create, view, or share data such as text, images, sound, or location on the Internet for social interaction purposes.” The definition of social network provider should be considered a hybrid sub-category of the already existing concepts of content and hosting providers under the Internet Law. Thus, social network providers are also obliged to comply with the decisions rendered by courts, prosecutors, and in limited cases, the Information and Communication Technologies Authority (“ICTA”), in relation to the removal of content and access bans.
Although it is clear that the current definition of the term essentially aims to cover all social media platforms, due to the lack of any exceptions which are seen in similar regulations in other countries, it is unclear whether the definition would also cover other platforms such as online marketplaces, news, forums and blog websites where users may publish content or comments, and even computer games that allow interaction between users.
1. Appointing a Representative in Turkey
Social network providers established abroad, which are accessed from Turkey more than 1 million times daily are required to appoint at least one representative in Turkey and must notify the ICTA of this representative as well as announce the representative on its own website. These steps are expected to enhance communications with foreign social network providers for the content removal requests of individuals and judicial authorities.
Strict enforcement measures are set forth against social network providers who fail to fulfill the aforementioned obligations. In case of incompliance, the ICTA will initially notify the social network provider who failed to fulfill its obligations regarding the representative’s appointment and notification and an administrative fine of TRY 10 million (approx. EUR 1.23 million) may be imposed if the failure proceeds for 30 days. If the violation is not remedied within 30 days, an administrative fine of TRY 30 million may be imposed. Should the social network provider still not comply with its obligations, Turkish resident tax payers may be prohibited from placing advertisements on the social network provider’s platform and may not sign any new agreements or make money transfers to the social network provider. If the social network provider has still not achieved compliance in 3 months, its internet traffic bandwidth may be throttled by at least 50% initially and later up to 90%. All measures will become void once the social network provider fulfills its obligations regarding the representative’s appointment and notification.
2. Takedown Requests and Reporting
Social network providers established in Turkey or abroad, which are accessed from Turkey more than 1 million times daily are obliged to respond to individuals’ content takedown requests that are made on grounds of violating personal rights or the right to privacy within 48 hours.
Social network providers established in Turkey or abroad, which are accessed from Turkey more than 1 million times daily are also required to provide (transparency) reports to the ICTA regarding the decisions and requests they receive and to publish the report on their website.
An administrative fine of TRY 5 million (approx. EUR 615,000) may be imposed for incompliance with takedown request handling and TRY 10 million may be imposed for incompliance with the reporting requirements.
3. Data Localization
Social network providers established in Turkey or abroad, which are accessed from Turkey more than 1 million times daily are required to take the necessary measures to store the data in Turkey if collected from users in Turkey.
4. Increased Fines and Compensation of Damages
Under the Internet Law, social network providers established abroad, which are accessed from Turkey more than 1 million times daily are now subject to increased administrative and judicial fines for incompliance with the decisions concerning content removal or access bans taken by courts, prosecutors, and in limited cases, the ICTA. An administrative fine of TRY 1 million (approx. EUR 125,000) may be imposed for incompliance with decisions relating to content that constitutes a catalogued crime under the Internet Law or decisions made for the listed purposes including national security, public order, the prevention of crime, or the protection of life. In case of incompliance with judicial decisions concerning content removal or access bans, the judicial fines previously set out in the Internet Law will be imposed as 50,000 days (corresponding to max. EUR 615,000) against social network providers established abroad, which are accessed from Turkey more than 1 million times daily. The amendment sets forth an increase in administrative fines of up to 5 times and an increase in judicial fines of up to 16 for foreign social network providers that receive more than 1 million people from Turkey accessing their content daily.
Social network providers are held liable for compensation of the damages that may be incurred due to their failure to remove or ban access to illegal content within 24 hours upon receipt of the judicial decision concerning the illegal content.
5. Right to be Forgotten
The amendment introduces the right to be forgotten, which has been widely discussed on a global scale and within the EU, as a legal right that can be brought before the criminal court of peace. Individuals may now request that their names not be associated with the websites subject to the court decision as part of their request before the criminal court of peace in relation to content removal or access bans, and the relevant search engines will be notified accordingly.
Earlier, the Turkish Data Protection Authority (“KVKK”), in its decision dated1 23 June 2020, also established that any individual may assert their right to be forgotten directly against search engines with respect to the indexed results, that search engines must carry out a balancing test between the rights and interests of individuals while evaluating such requests, and that the individuals may file complaints before the KVKK if the search engine declines their requests.
The amendment readjusted the administrative fines set out for incompliance with the hosting providers’ requirements under the Internet Law, which now range from TRY 100,000 to TRY 1 million (approx. up to EUR 12,500). The Internet Law requires hosting providers to notify the ICTA of their services and to obtain an operating certificate and retain certain traffic data for 6 months.
If the addressee of an administrative fine issued under the Internet Law is domiciled outside of Turkey, the notification may be served to the addressee directly via electronic means such as email, and such notifications are deemed to have been served at the end of the fifth day upon notification.
Before the amendment, in cases where online content constituted any of the catalogued crimes under the Internet Law, the only applicable measure was to ban access to the content. The amendment now provides an additional option to judicial authorities, prosecutors, and in limited cases, the ICTA to decide the content be removed instead of banning access to the content.
A separate law published in the Official Gazette on 28 July 2020 established the “Digital Platforms Commission” within the Grand National Assembly of Turkey (“GNAT”), which demonstrates that Turkey is set to oversee digital platforms both through executive and legislative branches. The Digital Platforms Commission will present opinions and proposals to the GNAT on issues concerning the protection of personal rights, the right to privacy, and the physical and psychological development of children over the internet, and the commission is granted the power to request information and documents from content, access, and hosting providers subject to the Internet Law regardless of whether they are established abroad or in Turkey.
In addition to the amendment on the Internet Law, the trend to regulate OTT (over-the-top) services is also apparent in the broadcasting and tax legislation. In September 2019, the Turkish broadcasting authority RTÜK passed a regulation covering OTT content streaming services, introducing a licensing requirement for the provision of on-demand content and requiring on-demand content to be subject to the Turkish broadcasting rules and principles, including licence fees. Later, in December 2019, the Law on Digital Services Tax was introduced, covering online social platforms, online streaming services, digital advertising services, application stores, and online marketplaces, which requires digital service providers to pay a 7.5% digital service tax over their gross revenue accumulated in relation to services demonstrating a territorial connection with Turkey, if the gross revenue for digital services provided in Turkey is over TRY 20 million and the global revenue is over EUR 750 million. Incompliance with either of the two regulations could result in banning of access to such OTT services from Turkey.