The Law on the Amendment of the Law No.5651 on Regulation of Publications on The Internet and Combating Crimes Committed By Means of Such Publication (the "Amendment Law"), which is expressed as a social media regulation in the public, entered into force after being published in the Official Gazette dated 31.07.2020 and numbered 31202. The Amendment Law in its preamble referenced the Constitutional Courts decision, numbered 2014/5376 and dated 28/01/2020, that there is a need to hold online platforms accountable in fighting with illegal content together with governments. The Amendment Law aims to bring a similar regulation to French Avia Legislation and German NetzDG. By bringing a "social network provider" definition, The Amendment Law aims to overcome difficulties and to hold social network providers accountable towards applications made by public bodies and Internet users.
Within this scope with the Amendment Law below mentioned novel changes has been brought:
- Social network provider definition,
- It is now possible to notify administrative fines issued against hosting providers and access providers with e-mail or other communication devices within the framework of the Law No.5651 on Regulation of Publications on The Internet and Combating Crimes Committed By Means of Such Publication (the"Law No. 5651"),
- Increased fines against hosting providers that doesn't meet their obligations as per the Law,
- Possibility to decide to extraction of (where possible) the illegal content which constitutes a crime or violation of personal rights, instead of restricting access to the content as a whole,
- Obligation to appoint a representative in Turkey for social network service providers which track over a million daily access from Turkey and a gradual five-stage administrative sanction,
- Keeping the data in Turkey,
- Applications made by users against hosting providers, claiming their rights are violated,
- Obligation to prepare periodic reports by social network providers which track over a million daily access from Turkey.
Regulations brought by the Amendment Law:
A. Social Network Provider Definition
With the freshly added provision in the Article 2 of the Law No. 5651, social network provider is defined. Accordingly, social network provider is "any natural person or legal entity that facilitates creating, viewing or sharing content such as text, image, sound or location".
The Law No. 5651 priorly defined the content provider, hosting provider and access provider. Accordingly, (i) any real person or legal entity that create, alter and provide all kinds of information or data through the internet are identified as content provider. (ii) any real person or legal entity that provide or operate systems and contents are identified as hosting provider (iii) any real person or legal entity that provide access for users to internet are identified as access provider. As it was mentioned in the preamble of the Amendment Law, the previous definitions of the Law No. 5651 were inadequate to capture the ever-changing dynamism of social networks. In fact, according to the Digital Report 2020 of We Are Social, among 7.75 billion people, which is corresponding to 55% of Earth's population, 49% of them (which corresponds to 3.80 billion people) actively uses social media. 1 According to a report bearing the name of Prof.Dr Safak Ertan the rector of Ankara University, that compiles the data of Hootsuite and Statista, in Turkey there are 52 million active social media users, 59,300 million internet user.
In response to this need, the definition of social network providers has now been made in our legal system with the Amendment Law. Broadly used applications in Turkey and in Global, Facebook, Twitter, Instagram, LinkedIn, Snapchat and TikTok, are encompassed by the definition and are subject to obligations we identify below.
B. Electronic Notification Method in Administrative Fines
Due to the fact that internet actors are mainly resident abroad and maintain their day-to-day communications through e-mail and similar electronic communication methods, and in parallel with the 2014 amendment which allows the notification through e-mail or other means of communication (the information may be gained through IP address and similar means), notification of administrative fines through e-mail and other communication methods will be considered "official notice" in scope of the Notification Law dated 11/2/1956 and numbered 7201.
Administrative fines therefore will be notified to Internet actors abroad by gaining such contact information (like e-mails) from the IP address, domain name, contact information on the web page and etc.
C. Increasing Monetary Fines to Hosting Providers That Doesn't Comply with the Notification Requirement
Hosting providers are identified as "any real person or legal entity that provide or operate systems and contents" as per the Article 2 of the Law No. 5651. If we have to materialize this definition, hosting providers that offer web hosting services and websites that users can create content are identified as hosting providers. Moreover, according to the Amendment Law, hosting providers that failed to meet their notification obligation will be penalized at lowest 10,000 Turkish Lira and highest 100,000 Turkish Lira.
By this amendment, it is foreseen to provide deterrence by increasing the administrative fines to be imposed to hosting providers who fail to fulfil their notification obligation.
In this context, social media platforms, which are the main focal point of the Amendment Law and which do not want to be subject to increased administrative fines, must notify BTK (Information and Communication Technologies Authority) with their hosting status.
D. Extraction of Content, Restriction of Access and Right to be Forgotten
With the Amendment Law, the illegal content may be extracted where it is possible, instead of blocking access to the platform as a whole. In addition, since content extraction decisions can be fulfilled by content and hosting providers, not by access providers, a regulation has been made to send these decisions to content and hosting providers.
By the request of the applicant (who's personal rights are violated) to a criminal court judge, the freshly added article 9 of the Amendment Law prevents a link with the name of the applicant and the subject of the breach. In this context, the decision will indicate which search engines will be notified by the Union. In other words, not only the access will be blocked or extraction of the content subject to breach but also it won't be listed in search engines such as Google, Yandex or Bing. Within this scope it can be said that the right to be forgotten will be applied effectively.
Social network providers who failed to comply with the decisions will be subject to administrative fines of one million Turkish Lira subject and 50 days of punitive fine.
On the other hand, a social network provider is obligated to compensate damages, if it failed to comply with a request to extract an illegal content (determined by a court order or a judge) within 24 hours. To recoup compensation, it isn't necessary to bring a lawsuit or prove the responsibility of the social network provider. In this context, it's aimed to hold social network providers responsible in case of non-compliance with the extraction of the illegal content.
E. Obligation to have a Representative in Turkey and Gradual Five-Stage Administrative Sanction
The obligation to have an authorized representative is without a doubt most comprehensive. Social network providers resident abroad which track over a million daily access from Turkey must appoint at least one authorized person in Turkey to respond applications and meet other obligations. This person's contact information must be able to be reached easily and it is necessary to display the contact information on the website in a manner which allows direct contact to this person. In addition, the identity and contact information of this person must be shared with the BTK (Information and Communication Technologies Authority).
Non-compliance with the obligation to have an authorized representative will be notified by the Information and Technology Institution and subsequently impose a gradual five-stage administrative sanction:
- 10 Million Turkish Lira: Non-compliance with the notification after 30 days,
- 30 Million Turkish Lira: Subsequent addition of 30 Million Turkish lira if the pre-notified 30 days period is not complied with,
- Advertisement Ban: Non-compliance after the second monetary fine will be met with a restriction of advertisement. Taxpaying natural or legal persons are forbidden to advertise new commercials, draw up a contract or transfer money with the social network provider,
- 50% Reduction of Band-width: President of the (BTK) Information and Communication Technologies Authority can apply to the criminal court to reduce the band-width 50% if the obligation is still not met after 3 months of advertisement ban,
- Up to 90% Reduction of Band-width: If within 30 days of reducing the 50% band-width capacity, the president of the Information and Technology Institution can apply to criminal court to reduce the band-width and, the judge upon considering service provided will determine the new restriction which can't be no less than 50%.
Access providers will comply with the decisions immediately and within four hours at the latest after the relevant decisions are notified to them.
In case of fulfilment of the obligation to appoint an authorized representative by social network providers; One fourth of the administrative fines imposed will be collected, the advertising ban will be lifted and the decisions of the judges will automatically be null and void. Access providers will be notified by (BTK) Information and Communication Technologies Authority in order to terminate the intervention to the internet bandwidth.
F. Keeping the Data in Turkey
Social network providers, resident in abroad or domestic, which track over a million daily access from Turkey, will take the necessary measures to ensure that the data of Turkish users are kept in Turkey.
G. Personal Rights Violation Applications
Social network providers which track over a million daily access from Turkey must return negatively or positively to the applications made within 48 hours. Negative returns must be justified.
Social network providers are obligated to complete system and infrastructure to address personal right violations within 3 months of the Amendment Law entrance into force. (This regulation entered into force on the date of publication of this article on Mondaq.)
Non-compliance with the obligation will result in an administrative fine of 5 million Turkish lira.
H. Periodical Reporting
Social network providers, resident abroad or domestic, which track over a million daily access from Turkey, must present BTK (Information and Communication Technologies Authority) systematically and categorical reports of the applications made to them regarding personal rights violations and applications made to extraction of the content and/or restriction of access every 6 months. Applications regarding personal rights violations will be published in the website of the social network provider anonymously.
First period report shall be notified to the Information and Technology Institution in 2021 January and published on their internet websites.
Social network provides who do not comply will be subject to an administrative fine of 10 million Turkish lira.
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.