11th Judicial Reform Package: Amendments To The Electronic Communications Law

A law proposal¹ numbered 2/3393 for the 4th legislative year of the 28th term, commonly referred to in the public as the "11th Judicial Reform Package" (the "Draft") has been submitted to the Presidency of the Grand National Assembly of Türkiye. One of the laws the Draft proposes to amend is Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed Through Such Publications² (the "Law"). The Draft is essentially based on the need to re-regulate the provisions annulled, together with their reasoning, by the Constitutional Court's decision³ dated October 11, 2023 and numbered E:2020/76, K:2023/172 (the "Decision").

1) Definitions: Content Removal & Warning Procedure
Under the Draft, in order to ensure that the relevant content can be restored where necessary in cases where the measure is implemented, content removal is no longer defined as "removal of the content from the servers or the hosted content", but as "removal of the content from the internet environment".

As regards the warning procedure, its scope is limited to situations where it is considered that rights have been violated, thereby aiming to align the regulation with the "prima facie violation" doctrine adopted in the Constitutional Court's decisions. In addition, such notification may now be made not only by persons claiming that their rights have been violated, but also by the Information Technologies and Communication Authority (the "Authority").

2) Ex Officio Measures by the President of the Authority
For the offences listed in the first paragraph of Article 8 of the Law, the authority of the President of the Authority to order access blocking—which had been annulled by the Constitutional Court and which was originally an additional power to content removal—is being reinstated through certain adjustments.

3) Infringement of Personality Rights
Pursuant to Article 9, which was annulled by the Court's decision and re-introduced under the Draft, individuals alleging a violation of their personal rights will be able to apply directly to the criminal judgeship of peace to request the removal of the content and/or the blocking of access.. Where the judge can identify the violation prima facie, without the need for a detailed examination, a decision will be rendered within 24 hours. If a prima facie violation cannot be established, the application will be rejected. In such case, other legal remedies under the general provisions will need to be used in order to seek redress for the alleged violation of personality rights.

In circumstances where an infringement of personality rights can be identified without the need for a detailed examination, and if so requested by the applicant, the decision will also specify the search engines to which notification shall be made, in order to prevent the applicant's name from being associated with the websites subject to the violation. In this way, "de-indexing", which shares a common ground with requests such as the "right to be forgotten" or removal from search results, will have gained a normative basis.

The content removal and/or access blocking decisions to be given by the criminal judgeship of peace will be limited to the publication that caused the violation of rights. In this context, if it is concluded that the violation cannot be prevented merely by specifying the URL address, or in cases of non-compliance with the decision, it will be possible to order access blocking to the entirety of the publication on the relevant website, provided that the reasoning for this is clearly stated.

The decision of the criminal judgeship of peace will be sent to the Association of Access Providers (the "Association") for notification to the relevant access providers as well as content and hosting providers. Upon notification, the decision must be implemented within no later than 24 hours.

Where the publication on the website(s) specified in the decision of the criminal judgeship of peace is also published at other addresses, the person whose personality right has been infringed may request the implementation of the relevant decision of the criminal judgeship of peace directly from the Association, without having to re-apply to the criminal judgeship of peace. However, this mechanism will not be applicable to decisions of access blocking of the criminal judgeship of peace that cover an entire website.

Objection to the decisions of the criminal judgeship of peace will be possible; however, judicial fines ranging from 1000 days to 5000 days are envisaged for the responsible persons of the relevant access providers as well as content and hosting providers who fail to comply with the decisions. The Draft appears to increase the penalty ranges set out in the provision that was annulled by the Court's decision.

4) Bandwidth Throttling for Foreign-Based Social Network Providers
The Draft also introduces a gradual mechanism for cases where foreign-based social network providers with more than ten million daily accesses from Türkiye fail to comply with content removal decisions.

Accordingly, in such a case, upon an application by the relevant person, the Association will serve a renewed notice on the social network provider. If, despite this notice, the decision is still not complied with within 24 hours, the relevant person may apply to the criminal judgeship of peace whose decision has not been implemented, requesting that the internet traffic bandwidth of the social network provider be throttled by 50%.

If the content is still not removed within 30 days as of the acceptance and implementation of this application, the relevant person may then apply to the criminal judgeship of peace for a further throttling of the bandwidth by up to 90%. In its decision, the judge will determine a rate between 50% and 90%, taking into account, among other things, the nature of the service provided. Once the content removal decision is complied with, the decision on bandwidth throttling will be revoked.

Footnotes

1 https://cdn.tbmm.gov.tr/KKBSPublicFile/D28/Y4/T2/WebOnergeMetni/9dd73bbe-00f6-4c29-8295-bc87a4d228a2.pdf (Only available in Turkish)

2 https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5651.pdf (Only available in Turkish)

3 AYM, E: 2020/76, K:2023/172, 11.10.2023 (RG: 10.01.2024, 32425), https://www.resmigazete.gov.tr/eskiler/2024/01/20240110-3.pdf (Only available in Turkish)

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