Turkey: Overview Of The Amended Law Regarding The Regulation Of Publications On The Internet And Combatting Crimes Committed Through Such Publications

Last Updated: 3 April 2014
Article by Gary Lachman and Hande Hamevi

Summary

Internet publications and the responsibilities of internet service, access and content providers are generally regulated under the Law Regarding the Regulation of Publications on the Internet and Combatting Crimes Committed Through Such Publications (Law No: 5651) published in the Official Gazette dated May 23, 2007 and numbered 26530 (the "Internet Publication Law"). Such law has been subject to recent amendments, as a result of which the responsibilities of the internet service, access and content providers have been increased whereas the powers of the Telecommunication Communications Directorate ("TIB") have been broadened. This has raised concerns and engendered criticism not only within Turkey but also in the international arena over its implications for freedom of speech and government censorship as well as the increased burdens placed upon parties engaged in internet services.

The amendments establish the legal framework and mechanism by which the Turkish government can regulate internet content and introduce the following restrictions and requirements:

1. Association of Access Providers

The Internet Publication Law establishes the Association of Access Providers (the "Association"). This is an official organization tasked with executing blocking orders as directed by TIB. The Association is also responsible for ensuring coordination between the TIB and parties engaged in the internet related services. The law requires that all ISPs and access providers join the Association, which will be closely overseen by TIB. Failure to join will result in non-compliant companies being prohibited from operating within Turkey as well as the imposition of administrative fines. The Association also acts as a representative of the parties engaged in internet related services and as part of such role, may appeal any blocking orders issued by the TIB. This "dual-personality" may lead to some legal schizophrenia and obvious conflicts of interest as it attempts to carry out its mandate.

2. Internet Service Providers (ISP) and Access Providers

An ISP is a company that provides internet access and transit while access providers enable internet backbone access. The most substantial change the law creates concerns ISPs and access providers.

Under the Internet Publication Law, access providers are required to block and prevent any "alternative means of access" to any content which is deemed to be in violation of the Internet Publication Law. Access providers are also responsible for checking whether the contents that they give access to are in accordance with the law.

Moreover, access providers are required to store traffic data for a term between 6 months and 2 years and to ensure the accuracy of such data. Under the law, traffic data is defined as information regarding the IP addresses, the start and ending times of the services provided, the type of services used, the amount of data transmitted and the identities of the users. Enhanced traffic data storage by access providers is likely to require greater data storage infrastructure and therefore increase the financial burden on the access providers.

In the event of failure to comply with any of these obligations set forth in the Internet Publication Law, access providers shall be subject to administrative fines up to TRY 50.000.

3. Internet Hosting Services

Internet hosting providers operate and enable internet servers. Under the amended Internet Publication Law, they are obliged to provide TIB with all requested information. Internet hosting providers are also obliged to remove any content deemed to be a violation under Article 8 of the Internet Publication Law.

Similar to access providers, internet hosting service providers are also required to store traffic data for the services they provide for a term of one to two years. Given the broad definition afforded to "traffic data" under the law, enhanced traffic data storage requirement is also likely to adversely affect hosting service providers from a financial syandpoint.

Providers found in violation of any of the responsibilities set forth in the law shall be subject to a fine of up to TRY 100.000.

4. Internet Content Providers (ICP)

ICP's are defined as "any real or legal persons that create, amend or provide the information or data provided to internet users." Because the definition of an ICP is drafted so broadly, its exact scope and definition of who or what could be identified as an ICP remains vague.

ICP's are responsible for any and all content that it provides on the internet and is obliged to provide the TIB with any information it requests. The type of information that may be requested remains unexplained in the law and raises concerns as to the unlimited authority of the TIB, especially when read together with the broad definition afforded to ICP's and the general scope of responsibilities imposed.

5. Blocking of Contents Published on the Internet

As per Article 8 of the Internet Publication Law, any publication content of commits the following offences shall be blocked:

  1. Encouraging suicide;
  2. Sexual child abuse;
  3. Facilitation of the use of drugs and stimulant substances;
  4. Supply of substances posing danger to health;
  5. Obscenity;
  6. Prostitution;
  7. Provision of places and opportunities for gambling; and
  8. Offences falling within the scope of the Law regarding Offences Committed Against Ataturk (Law No. 5816).

Under the Internet Publication Law, depending on the circumstances set forth in the law, either the relevant court, judge or the prosecutor shall issue an order for the blocking of content which is deemed to commit one of the abovementioned offences and send such order to the TIB for execution. In the event of offences related to sexual child abuse, obscenity or prostitution, the TIB may also issue a blocking order, provided that the TIB files a complaint with the Chief Public Prosecutor. Accordingly, internet host providers and access providers are required to remove or block access to such illegal content in accordance with the order, the failure of which results in the imposition of judicial fines.

Furthermore, third parties may also file complaints at the relevant court for removal of content which is in violation of their personal rights. Court orders for blocking of content are then sent to the Association in order for the relevant access provider to be notified of the complaint and removal order. Failure to comply with such court order results in the imposition of judicial fines.

Third parties may directly apply to the TIB for a blocking order on grounds that the relevant publication on the internet is in violation of the privacy of an individual. In such case, the amended Internet Publication Law authorizes the TIB to issue an order to block content where it deems that immediate action is required. Upon notification to the Association of such order, the relevant association members must comply and block the content within four hours of receipt. In such case, the TIB is then required then seek a court order to uphold the blocking order within 24 hours, and in the event that a court order cannot be obtained within 48 hours, the initial blocking order is lifted automatically.

The authority granted to the TIB to issue content blocking orders in the aforementioned circumstances also raises widespread concerns due to the lack of any transparent regulation on and exercise of the powers of the TIB. This has been a source of anxiety because of the potential that such powers could be abused and employed arbitrarily.

Conclusion

In general, the amendments made to the Internet Publication Law expand the legal responsibilities of internet access, hosting and content providers. Companies now have greater legal liability in terms of compliance with the TIB as they are under a threat of administrative or judicial fines. The creation of the Association and its close relationship with the TIB raises concerns about excessive governmental control over private internet service provider companies and internet users for political ends. Furthermore, the provision requiring providers to not only block sites but also prevent circumvention of particular blocks via alternative access, is also costly and practically unrealistic.

Internet users are also greatly affected by the Internet Publication Law as the amendments now greatly increase the government's ability to monitor, regulate, and censor any material on the internet. With increased powers granted to TIB, and given the extremely general and vague wording of the law, the government may block content and limit freedom of speech based on political, ethnic or social grounds. As it stands now, Internet Publication Law significantly expands the Turkish government's scope of internet oversight and provides little in terms of affording protection to the individuals.

The blocking of the social network Twitter on March 20, 2014 on the grounds that it violated the personal rights of individuals and the subsequent blocking of YouTube on March 27, 2014 are vivid examplesof the abuse of power by the TIB. The blocking of Twitter was accomplished under court orders which in fact addressed individual concerns over fake (robot) accounts. However, these court orders have arbitrarily been interpreted and employed by the TIB to close a global social network. This law obviously needs to be further refined so that democracy and freedom of speech is protected as originally intended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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