6 August 2020
The Law No. 7253 Amending the Law on the Regulation of Internet Broadcasts and the Prevention of Crimes Committed Through Such Broadcasts (“Law No. 7253”) which introduces significant amendments regarding social media was published in the Official Gazette dated 31 July 2020 and numbered 31202.
With the Law No. 7253, “social network provider” has been created as a new category of hosting service provider and new obligations have been introduced specifically for these providers. According to the preamble of the law, the aim of the amendment was to establish a direct connection with the social network providers in order to overcome the difficulties faced during the individual applications submitted to the social network providers by the internet users or while sending notices to the social network providers by public institutions. Please see below the details regarding the amendments introduced, particularly the addition of “removal of content” to the existing measures that would be taken in case of violation of rights.
As is known, many of the platforms (such as Twitter, Facebook, YouTube etc.) that are aimed to be regulated with the amendments under the Law No.7253 are already identified as “hosting service providers” (real or legal persons who provide or operate systems hosting services and contents – Article 2/1-(m)) and are subject to certain obligations set forth under the Law No. 5651 on Regulation of Internet Broadcasts and the Prevention of Crimes Committed Through Such Broadcasts (“Law No. 5651”).
With the amendments, a new category of hosting service providers named “social network provider” has been included in the Law No. 5651 and stricter obligations have been set forth for them compared to other hosting service providers in case they exceed a specific level of use. As per sub-paragraph (s) of Article 2 paragraph 1 of the Law No. 5651 added through the Law No. 7253, “social network provider” has been defined as “real or legal persons, who enable users to create, view or share contents such as text, image, sound or location on Internet for social interaction purposes”.
Within the context of the above-mentioned definition, the term of “social network provider” stands for what we call as “social media platforms”, such as Twitter, Facebook, Instagram etc. Despite the fact that it is still debated whether the electronic communication applications such as WhatsApp are to be included within the scope of this definition, we are of the opinion that such platforms are excluded, since the definition of social network provider itself only involves the content shared on Internet for social interaction purposes which also interfere with the users’ sphere of personal liberty and thus contents shared through such platforms are closely related to the freedom of communication. Indeed, communication differs from social interaction since it provides one with the privilege to choose the person to communicate with. Therefore, the context of the term “social network provider”, which has been defined broadly, shall be interpreted strictly and in favor of freedom of speech and communication, taking notice of the differences in- between.
Furthermore, with the amendments made, the amount of penalty to be applied in case of violation by the hosting service providers, has been notably increased. As such, the sanction range of TRY
10.000 - TRY 100.000 has been revised as TRY 100.000 - TRY 1.000.000.
As per the amendment, foreign-based social network providers with a daily access of over 1 million from Turkey shall appoint at least 1 person as an authorized representative in Turkey as well as include the relevant information regarding the representative(s) on their website in a discernible and accessible manner.▶ In case of failure to fulfill the obligation to appoint an authorized representative, a procedure where incremental measures will be applied as detailed below:
Initially, the social network provider who has not fulfilled its obligation shall be notified by the Information Technologies and Communications Authority (“Authority”).
- In case of failure to fulfill the obligation in 30 days starting from the date of notification, an administrative fine of TRY 10.000.000 shall be imposed on the social network provider by the President of the Authority (“President”).
- In case of failure to fulfill the obligation in 30 days starting from the notification of the administrative fine, an additional administrative fine of TRY 30.000.000 shall be imposed.
- In case of failure to fulfill the obligation in 30 days starting from the notification of the administrative fine, real and legal person tax-residents in Turkey shall be banned from giving any new advertisements to the social network provider. In this context, no new contract can be concluded and transfer of money can be realized pertaining to such transaction.
- In case of failure to fulfill the obligation again in 3 months starting from the date of the decision for the advertising ban, the President may request from the competent Criminal Court of Peace a reduction of the bandwidth by 50 %. In case of another failure to fulfill the obligation in 30 days starting from the date of the implementation of the relevant court decision accepting the request, the President may request from the competent Criminal Court of Peace a further reduction of the bandwidth by 90%. In the decision to be made upon the second application, the judge may determine a lower rate of reduction; provided that it cannot be lower than 50%.
Applications within the scope of Article 9 and 9/A of Law No. 5651 (due to violation of personality rights and violation of privacy) must be responded positively or negatively within 48 hours at the latestby foreign-based social network providers with a daily access from Turkey of over 1 million. If the response is negative, the social network provider is obliged to provide justification for such conclusion. In case of contrary conduct, the social network provider shall be imposed a fine of 5 Million Turkish Liras by the President. The necessary preparations for compliance with this obligation shall be completed within three months.
▶ Domestic or internationally based social network providers with a daily access from Turkey of over one million are required to report to the Authority statistical and categorical information on the implementation of the decisions to remove and/or block access pertaining to the content reported to them as well as on the applications under Articles 9 and 9/A, every six months, in Turkish-language. Reports relating to applications made under Articles 9 and 9/A of Law No. 5651 shall be published on the social network provider's own website, provided that the reports are cleared from any personal data pertaining to the relevant persons. Social network providers who fail to meet this obligation shall be imposed a fine of 10 million Turkish Liras by the President. The first reports shall be submitted to the Authority as of June 2021. Domestic or internationally based social network providers with a daily access from Turkey of over 1 million must take the necessary measures to host the data of users in Turkey, within Turkey.
▶ In the context of social network providers' obligations regarding the shared content, in the event that a content is found to be unlawful by a judge or court decision, social network providers shall be liable for damages arising from the failure to take appropriate measures (removing or blocking access to the content).
▶ It should be noted that the obligations of social network providers stated in this context do not eliminate their obligations and responsibilities that arise from them also being content and hosting service providers, as such social network providers shall also be subject to the specific obligations pertaining to other categories of actors they are involved within the scope of the law such as being a hosting service provider.
In 2014, it has been regulated with the third paragraph inserted to the Article 3 of the Law No. 5651 that those who manage the activities within the scope of the law domestically or from abroad may be notified by e-mail or other communication tools over the information obtained through their web pages such as communication tools, domain name, IP address and similar resources. In case of administrative fines issued within the scope of Law No. 5651, it has been clearly set forth under paragraph 5 inserted to Article 3 by the Law No. 7253, which aims to resolve disputes in the notification procedure to interlocutors who are abroad, that notification can be made in accordance with the provisions of the paragraph 3 of Article 3 and such electronic notifications to be effected by this procedure shall be deemed as a legal notification. Notification shall be deemed to have been made at the end of the fifth day following the date of notification.
With the amendment, it has been clearly stated that the measure of removal of content may also be in addition to the measure of access blocking, in case a claim of violation regarding a content within the scope of the Law No. 5651 has arisen due to a cause other than the right of privacy.
In this context, a request for removal of relevant content and/or access blocking is to be made by the real or legal persons or institutions or organizations, whose personal rights are claimed to be violated due to the contents on Internet.
Another regulation has been made as an amendment to the Law No. 5651 with an addition of a clause to Article 9, in order to secure the requests regarding the removal of content. With this clause, the principle of “right to be forgotten” has been provided, which has received attention with the Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González decision rendered by the Court of Justice of the European Union and acknowledged domestically as it has been implemented by the Constitutional Court of Turkey. In this context, in case of a request that has been made by real or legal persons whose personal rights are claimed to be violated as a result of a shared content on Internet, the courts may decide that the name of the applicant will not be associated with the relevant website.
Should you have any queries, please do not hesitate to contact us.
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