The Regulation on Amending the Regulation on the Information and Communication Technologies Authority's Administrative Sanctions1 ("Amending Regulation") was published in the Official Gazette of September 29,2018, and entered into force on the same day. The Amending Regulation amends certain provisions (Articles 3, 6, 12 and 19) of the Regulation on the Information and Communication Technologies Authority's Administrative Sanctions ("Sanctions Regulation").
The Sanctions Regulation sets out the administrative fines and other sanctions that the Information and Communication Technologies Authority ("ICTA") may impose on the operators. Under the Law No. 5809 ("Electronic Communications Law"), an operator is defined as an entity who provides electronic communications services and/or operates electronic communications networks within the scope of the authorisation granted to it. The Amending Regulation envisages new sanctions regarding violations related to numbering obligations, consumer rights, and cyber-security.
Article 2 of the Amending Regulation introduces a new provision regarding violations of the requirements with respect to calling line identifications ("CL/"). These requirements and liabilities are defined and regulated under the Regulation on Authorization Regarding Electronic Communications, and oblige the operators to refrain from establishing blank, deficient or misleading CLIs, or carrying and terminating such CLIs.
The new provision states that the operators who infringe their obligations arising from CLIs will be sanctioned with an administrative fine of up to 3% of their net sales during the previous calendar year. This provision also states that, if ICTA determines that the violation constitutes gross fault, the operator's authorization will be terminated and/or cancelled. Furthermore, the new provision indicates that operators who breach the relevant numbering laws, except for the numbering requirements listed under the first three paragraphs of Article 6 of the Sanctions Regulation, will be subject to an administrative monetary fine of up to 3% of their net sales within the previous calendar year.
Article 3 of the Amending Regulation imposes a new administrative fine on operators who are found to be acting with the purpose of misleading or deceiving consumers while providing value-added electronic services. Such operators will be subject to an administrative fine of up to 3% of their net sales during the previous calendar year. This provision also declares that, if ICTA determines that the violation amounts to gross fault, the operator's authorization will be terminated and/or cancelled. The provision further states that operators who violate consumer laws, except for the requirements put forth under Article 12 of the Sanctions Regulation, will be subject to an administrative monetary fine of up to 3% of their net sales during the previous calendar year. This is a brand new fine; previously, the relevant provision of the Sanctions Regulation did not omit misleading or deceiving consumers, but stated that, in case of a violation relating to any value-added electronic communications, an administrative fine of up to 1% of the operator's net sales during the previous calendar year would apply.
Article 4 of the Amending Regulation, which amends Article 19 of the Sanctions Regulation, introduces a new provision addressing "natural persons" and "private legal entities which are not operators" under the Electronic Communications Law. According to the new provision, parties who fail to comply with the obligations determined by ICTA regarding national cyber-security activities and protective measures against cyber-attacks, or fail to implement the measures taken by ICTA, will be subject to an administrative monetary fine in the amount from 1,000 to 1,000,000 Turkish Lira. This provision further indicates that ICTA will request any real persons or legal entities who are affected by this provision to submit their written explanations regarding the violation within a time period to be determined by ICTA (ranging from 15 to 30 days), and written explanations that are not sent in due time will not be taken into account in the determination of any potential administrative fines. Previously, the Sanctions Regulation had not specified any fines regarding natural persons or entities that are not considered as operators, but merely envisaged fines against operators, in the amount of up to 3% of the operator's net sales during the previous calendar year.
The new provision addresses natural persons and private legal entities that are not considered as operators, which may be extended to all natural persons and private legal entities and interpreted to mean that they will be subject to ICTA's regulations and measures. Therefore, this provision appears to have a wide and ambiguous scope. Although the actual scope of the application of this provision is yet unknown, there is a possibility that ICTA may enforce this provision in the requests that it directs at legal entities that are not acting as "operators" under ICTA's authorization or supervision. In this regard, ICTA may also be expected to issue a list of rules and obligations within the scope of this provision in the future.
Footnote
1 Official Gazette, The Regulation on Amending the Regulation on the Information and Communication Technologies Authority's Administrative Sanctions http://www.resmigazete.gov.tr/eskiler/2018/09/2018 0929-4.htm (accessed November 11, 2018)
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2018. A link to the full Legal Insight Quarterly may be found here.
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