- Introduction
For a long time, the place, and limits of social media in the legal order have been the subject of discussion in many countries. As a matter of fact, Germany, which is one of the leading countries in this regard, has seriously addressed the issue, and the German Network Enforcement Act (Netzdurchsetzunggesetz, NetzDG)[1] has entered into force since January 2018. Similarly, studies on parallel issues are carried out in England, Italy, France, and the Netherlands.
When we examine Turkey, it is seen that the regulations regarding social media and the Internet Broadcasts in general have started with the law numbered 5651 called ‘Regulation Of Publications On The Internet And Combating Crimes Committed By Means Of Such Publication’ (“the Law numbered 5651”)[2] The Law has amended many times so far but the last amending published in the Official Gazette on 31 July 2020 is especially important since it involves noticeable changes and further additions such as the definition of Social Network Providers.
With the amendment of the Law numbered 5651 which is accepted by the Turkish Grand National Assembly on July 29, 2020 and published in the Official Gazette on 31 July 2020 (“the Amendment of the law”)[3], a number of obligations have been imposed on major platforms such as Twitter, Facebook, Youtube, Instagram, TikTok, Periscope, Pinterest, LinkedIn, DailyMotion and VK due to being a Social Network Provider.
Within the scope of the Amendment of the law, additional provisions were added to the law numbered 5651 and the definition of Social Network Provider was made for the first time and wide obligations were stipulated for Social Network Providers. In this context, the Information Technologies and Communication Board (“the Board“) has taken the Decision named ‘Procedures and Principles on Social Network Provider’ (“the Decision“)[4] which is published in the Official Gazette dated 2. October 2020 and numbered 31262, in line with the Amendment of the Law.
The main subject of regulation is the obligation of Social Network Providers to designate representatives according to the Decision which comprises the social network based domestically and abroad with access to more than one million daily within Turkey. In this direction, the Decision primarily emphasizes in which situations a representative will be designated, the qualifications that the representative must have, the obligations of the representative and the sanction to be applied if these obligations are not fulfilled. In addition to obligation of designating a representative, Social Network Providers also have other obligations such as to respond applications made by individuals, to prepare and submit reports to the Board and to locate Turkish users’ data in Turkey etc. In this direction, we can divide the obligations regulated in the Decision into obligations regarding the designation of a representative and other obligations.
- Obligations Regarding the Designation of the Representative
- Designation of the Representative
Social Network Providers are natural or legal persons who allow users to create, view or share content such as text, images, sound, location on the internet for social interaction as defined in the law numbered 5651 and the Decision.
In this direction, Social Network Providers may be based domestically or abroad. However, if the Social Network Provider is based abroad, it shall designate at least one representative in Turkey. Authorized representatives may be Turkish citizens or legal entities acquired in Turkey according to the Turkish legislation.
The representatives designated and reported to the Board by the Social Network Providers have obligations such as to deal with requests and notifications that are sent by the Board as well as the judicial and administrative authorities, to respond to the applications made by persons, to report and to ensure fulfilment of other obligations under the Law numbered 5651. As a result, along with the obligation to designate a representative, the Social Network Provider is obliged to inform the Board about identity and contact information of this representative and also to publish such information on its website in an easily seen and directly accessible way.
- Violation of the Obligation to Appoint Representatives
The Decision includes a progressive sanction system for the Social Network Providers who fail to fulfil the obligation to designate and report representative. In this respect, sanctions starting primarily in the form of administrative fines increases to the form of reduce the internet traffic bandwidth by ninety percent.
- In the first stage, the Social Network Provider, who does not fulfil the obligation to report a representative to the Board, is notified by the Institution. In case of not fulfilling this obligation within thirty days after the notification, the Social Network Provider will be sanctioned with an administrative fine of TRY 10 million (App.1,3 Million USD).
- The Social Network Provider must notify the Board regarding to representative within 30 days from the notification of the administrative fine. If the obligation is not fulfilled within thirty days as of the notification of this fine, a second fine of TRY 30 million (App.3,9 Million USD) will be issued.
- If the obligation is not fulfilled after the second administrative fine, real or legal persons who are inhabitant and taxpayer in Turkey will be banned from giving advertisement to these Social Network Providers. In line with this prohibition, establishment of a new contract or money transfer for such will not be possible.
- If the obligation is not fulfilled within three months after the decision of the advertising ban, the Board may apply to the Criminal Court of Peace to reduce the internet traffic bandwidth by fifty percent.
- And lastly, if the obligation to designate and report the representative is still not fulfilled within thirty days after the implementation of judge’s decision regarding the acceptance of the application, the Board may apply to the Criminal Court of Peace for the Social Network Provider’s internet traffic bandwidth to be reduced by ninety percent this time.
It should be noted that if the Social Network Provider fulfils the obligation to designate and report a representative after the implementation of the sanction, one fourth of the administrative fines imposed will be charged, the advertising ban will be lifted, and the judge’s decisions will automatically become null and void.
- Other Obligations
Along with the obligation of the Social Network Provider to designate a representative, it also has a number of other obligations that will essentially be fulfilled through the designated representative.
- Obligation to Respond in Turkish to Applications Made by Persons
Users have the right to apply for contents that violates the personal rights or right to privacy within the scope of Articles 9 and 9 / A of the Law numbered 5651, and Social Network Providers are obliged to respond to these applications.
In this respect, Social Network Providers, who are obliged to make application in Turkish language option in order the users to be able to make applications easily, are obliged to give a response with reasoning to the applications within 48 hours at least. Additionally, if the application is made in Turkish, the respond must be given in Turkish as well.
- Reporting Obligation
As a matter of fact, with the Amendment of the Law and the Decision, the Board intends to learn and analyse whether Social Network Providers fulfil their obligations and to what extent the interests of users are realized through reports that are expected to be submitted to the Board at regular intervals.
With this Amendment of the Law, the Social Network Providers are obliged to inform the Board every six months by reports which are written in Turkish Language containing statistical and categorical information on the execution of decisions notified to them to remove content and/or to block access and the aforesaid applications. Accordingly, the first one of these reports will be submitted to the Board in June 2021.
Furthermore, within the scope of the reporting obligation, the reports prepared regarding the applications of the users are published on the website of the Social Network Provider after being purified from personal data.
- Data Localization Obligation
Social Network Providers may be recording some personal data regarding their websites and applications. At this point, the Law numbered 5651 and the Decisions taken by the Board contains obligation to the Social Network Provider regarding data localization. In this respect, the domestic or foreign Social Network Provider which have more than 1 million daily access to their services from Turkey is obliged to store data of their Turkish users in Turkey.
- Violation of Other Liabilities
As stated above, Social Network Providers are obliged to respond to applications made by individuals, and the Institution, which examines whether this obligation has been fulfilled, has the authority to impose an administrative fine of 5 million (App 0.65 Million USD) Turkish lira to the relevant Social Network Provider if it determines that it has not fulfil this obligation.
Likewise, in the event that Social Network Providers violate reporting obligation, the head of the Authority may impose an administrative fine of 10 million (App 1,3 Million USD) Turkish lira to the relevant Social Network Provider.
In addition, Social Network Providers have obligations to remove content or block access to content within 24 hours if they are declared that is unlawful by a judge or court order. Thus, the Social Network Provider who does not remove the content or does not prevent access to the content within 24 hours will be responsible for the compensation of the relevant damages.
- Result
The law numbered 5651 and the Decision which was made to cover a large number of platforms in line with the Amendments made are important in terms of the direct communication with social networking providers in case of mention obligations are not fulfilled.
Even though there are various criticisms against the Amendment of the Law, regarding the ambiguity of the status of the representative and the broad definition of social networks which is open to interpretation there are also quite positive opinions by considering the interest of users. Many believes that the social networks should be brought under control while others believe the control shall be limited and definite.
At this point, we will see in the days ahead by the practice of the decision what impact the Amendment of the Law will have on social networks, and how the balance will be struck in the interests of the Social Network Provider on the one hand and the interests of the users on the other.
[1] German Network Enforcement Act (Netzdurchsetzunggesetz, NetzDG), see: https://germanlawarchive.iuscomp.org/?p=1245
[2] Law No. 5651 On Regulation of Publications on The Internet And Combating Crimes Committed By Means Of Such Publication, published in Official Gazette numbered 26530 and dated 23.05.2020, see: https://www.resmigazete.gov.tr/eskiler/2007/05/20070523-1.htm
[3] The Amendment of the Law numbered 5651, published in the Official Gazette numbered 31202 and dated 31.07.2020, see: https://www.resmigazete.gov.tr/eskiler/2020/07/20200731-1.htm
[4] The Decision taken by the ICTA named ‘Procedures and Principles on Social Network Provider’ numbered 2020/DK-İD/274 and dated 09.09.2020, published in the Official Gazette numbered 31262 and dated 02.10.2020, see: https://www.resmigazete.gov.tr/eskiler/2020/10/20201002-5.pdf