By providing a global network for users to express their opinions and upload their content, social media platforms have become one of the most significant sources of information in the world. As of July 2020, approximately 3.6 billion people use social media, with users spending 2 hours and 22 minutes of their day on average on different social media platforms.

With a young population and sustained efforts to increase internet penetration in the country, the population in Turkey has followed this trend of social media use. There are 54 million Turkish people using social media, with 2.2 million of these users having signed up to networks just between April 2019 and January 2020. That means 64% of the Turkish population are actively using social media platforms, sharing content, reaching information, and most importantly sharing their data with the social media platforms.

The data generated by users on social media platforms has become an invaluable source of information for parties ranging from companies to political parties. Analysing segments of user data and conducting big data analysis has allowed these entities to carry out increasingly effective targeted communication and marketing campaigns. Consequently, as data has become essential, concerned states have increasingly enacted measures that ensure adequate protection and safeguards. Some states have also become inclined towards enacting more protectionist measures for data localization that ensure data obtained from their citizens remains within the country of origin.

The increased adoption and use of social media has also provided a platform for increased criminal offences committed on the Internet. Such offences range from traditional crimes that can be committed online to new forms of violation of personal rights and the right to privacy that can be committed using online tools such as cyberbullying.

This has led states to regulate the obligations and liability of social media platforms more strictly. Germany's NetzDG, enacted at the beginning of 2018, regulates the obligations of social media platforms while in England there is an ongoing discussion about extending the authorization of OFCOM, the media supervision institution. France, on the other hand, introduced regulations for preventing hate speech on social media.

A similar regulation regarding social media platforms had been on the political agenda of Turkey during recent years. Following consultation through the relevant commissions, on 29.07.2020, the Amendment on the Law on the Regulation of Publications on The Internet and Suppression of Crimes Committed By Means of Such Publications ("Amendment"), also known as "The Social Media Law" was passed by the parliament and came into effect upon publication in the Turkish Official Gazette.

The Amendment includes various changes regarding the obligations of social media platforms, rights of application and means of recourse for users, data storage, and content removal. The most significant changes introduced with the Amendment are (i) content removal and (ii) additional obligations imposed on the social media platforms.

Content Removal:

According to Articles 8 and 9 of the Law on the Regulation of Publications on The Internet and Suppression of Crimes Committed By Means of Such Publications numbered 5651 ("Law numbered 5651"), if a piece of content constitutes a crime as set out in Article 8 and/or violates someone's personal rights, the court can restrict access to that content. However, as a result of these restriction decisions, access to an entire website on which illegal content is published can become restricted instead of simply restricting access to the offending content. Therefore, this raises a question as to whether the right to freedom of expression is violated.

Within the scope of this discussion, the Amendment introduced the concept of "content removal" in addition to the previously existing system of access restriction.

As per the Amendment, instead of only ruling to restrict access to content, courts may rule to remove specific illegal content from the website or a social media platform in the situations set forth by Article 8 and Article 9 of the Law numbered 5651. The preamble of the Amendment states that such methods of content removal will allow the courts to prevent the circulation of illegal content without unnecessarily restricting freedom of expression by blocking access to an entire website.

However, the Amendment does not regulate the conditions for the courts to grant a content removal decision meaning the court has the discretion to decide on an access restriction or content removal. Consequently, the conditions of content removal will be determined by the court decisions and jurisprudence of the Court of Appeals as the content removal practice improves.

Obligations of Social Media Platforms:

The Amendment defines social network providers as "the persons who provide a platform for its users to create, view and share written, visual or audio content or location on the internet for social interaction" and introduces a number of new obligations for social network providers.

The most significant obligation imposed on social network providers is to appoint a local representative. According to the Amendment, social network providers whose daily traffic in Turkey is over a million will be obliged to appoint a representative to respond to user complaints regarding violation of privacy and violation of personal rights. The representative will also notify the social network providers regarding the notifications and demands of the official authorities in Turkey and ensure these demands and submissions are implemented. Social network providers who do not appoint a representative will be subjected to sanctions including administrative fines up to TRY 30 Million, advertisement bans and a decrease in their bandwidth.

The other obligations of social media providers whose daily access is over a million are as below:

• Responding to the direct complaints of the users regarding the violation of privacy and violation of the personal rights within 48 hours. The social network providers who do not comply with above will be subject to an administrative fine of TRY 5.000.000.
• Reporting the data regarding user complaints and court decisions on access restriction and/or content removal and publishing the anonymized data on their websites. The first reporting deadline is June 2021. Social network providers who do not comply with the above will be subject to an administrative fine of TRY 10.000.000.
• Providing sufficient measures to keep user data in Turkey. The provision may eventually be interpreted as an obligation on social media providers to relocate their servers containing data of Turkish users in Turkey. The provision shows that in line with increased awareness on the importance of data collection, further regulations on data collection in Turkey may be forthcoming.

The Amendment also holds social network providers liable for damages caused by illegal content published on their platforms, provided that the illegality of the content is ratified by a court decision. This provision will lead social network providers to remove illegal content from their platforms without having to need a court decision ordering an access restriction or the removal of content. With this provision, persons whose rights are violated by content can apply to the social media platform and file a lawsuit claiming compensation for their damages along with the person who published the illegal content. As the compensation can be collected from the social media platform, the social media platforms can apply for recourse against the publisher of the content regarding the compensation.

With the Amendment, the notification process of administrative fines imposed as per Law numbered 5651 has also changed. In case the respondent of the administrative fines is not resident in Turkey, the notification may be made through e-mail or another way. The addressee will be deemed as duly notified and the appeal period against the administrative fines will start as of the date of notification.

The Amendment also regulates the right to be forgotten and allows persons whose personal rights have been violated by content to request to the court that his/her name not be associated with that content by search engines.

Conclusion:

The Amendment sparked controversy around freedom of expression in Turkey and there has been criticism that it will give the state wide-reaching authority to censor content on social media. The effects of the Amendment on freedom of expression will be seen in time with the practices of the courts and relevant public institutions.

On the other hand, the Amendment may affect Turkish people's access to social media platforms since the sanctions being imposed, including large administrative fines and decreases in bandwidth in cases of non-compliance, may cause social media platforms to cease or limit their activities in Turkey.

Increasing social media use made Turkey an attractive market for social media platforms. Their reaction and eagerness to comply with government regulations will show whether Turkey remains a good market for social media platforms and data collection.

Originally published 8/24/2020.

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