In 2014, 121 deputies of the Republican People's Party ("CHP") applied to the Constitutional Court for the annulment of certain provisions of Law No. 5651, the primary Internet law in Turkey, along with certain provisions of other laws, such as the Tax Procedure Law and the Public Tender Law.
The Constitutional Court partially accepted the request of CHP with its decision No. 2014/87 E. and 2015/112 K., and annulled certain provisions of Law No. 5651 on December 8, 2015. The decision of the Constitutional Court was published in the Official Gazette on January 28, 2016. Some of those provisions were annulled on the decision's publication date in the Official Gazette.
However the Constitutional Court decided to annul the provisions below by stating that, for these provisions, the annulment decision will be effective in one year following the publication of the decision in the Official Gazette:
1. Article 4/3 of Law No. 5651, which reads as follows: "Content provider delivers the information requested by TIB which fall under the scope of TIB's performance of duties assigned by this Law and other Laws, to TIB as requested and takes the measures notified by TIB."
The Constitutional Court decided on the annulment of this provision by stating that the relevant provision was not clear and foreseeable and stated that this section was in violation of Article 20 of the Constitution, as it violated the constitutional rights of individuals through data processing undertaken without obtaining the explicit consent of the relevant persons.
2. Article 5/5 of Law No. 5651, which reads as follows: "Hosting Provider is obliged to deliver the information requested by TIB in the requested form and take the measures notified by TIB."
This provision was annulled by the Constitutional Court as this provision granted an uncertain authority to the Presidency of Telecommunications and Communication ("TIB") in terms of (i) the conditions of conveying the information requested by TIB, (ii) the nature of the information to be requested by TIB, and (iii) how long the relevant information would be held by TIB.
3. Article 6/1(d), which reads as follows: "Access Provider is responsible for delivering the information requested by TIB, in the requested form and for taking measures as notified by TIB."
This provision was also annulled by the Constitutional Court with the same reasons as for Article 5/5 above.
4. Since Article 6/1(d) above was annulled, the Constitutional Court also annulled the administrative fine that would be imposed for not complying with the obligation to deliver the requested information, by annulling "subsection (d)" under Article 6/3.
During the one-year transition period, the TIB was shut down and its authorities were transferred to the Information and Communication Technologies Presidency ("ICTA") by Decree No. KHK/671. Therefore, all references to the TIB in the foregoing provisions shall be applicable to the ICTA.
As a result of the annulment, ICTA's authority to collect data from access providers, content providers and/or hosting providers was abolished as of January 28, 2017. Going forward, data collection will only be allowed if it is duly requested in the course of a criminal investigation and/or prosecution.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2017. A link to the full Legal Insight Quarterly may be found here.
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.
