October 2020 – Recent amendments to Turkish Law No. 5651 "On the Regulation of Broadcasts via the Internet and Prevention of Crimes Committed through Such Broadcasts" (the "Amendments") have widened the scope of Law No. 5651 to cover social network providers (''SNPs''). We summarise these legislative changes in a previous article, which can be accessed here.
The relevant body to oversee the application of Law No. 5651, the Information and Communication Technologies Authority (''ICTA''), has recently issued a set of Procedures and Principles that shed light on how certain questions relating to Law No. 5651 will be applied to SNPs (''Procedures and Principles''). This secondary regulation was published in the Official Gazette (no. 31262) dated 2 October 2020 and entered into force as of this date. You can access the text of the relevant regulation (in Turkish only) here.
The legislative changes introduced by the Amendments to Law No. 5651 met with widespread public debate. Facebook announced that it will not appoint a local representative in Turkey, even if the law requires SNPs to do so.
What questions do the Procedures and Principles answer?
1.What falls under the definition of an SNP?
The Procedures and Principles introduce certain clarifications regarding the implementation of the Amendments to Law No. 5651 and have been provided for the purpose of ending the debate. In accordance with the Procedures and Principles, any SNP, whether local or foreign, that is accessed daily in Turkey more than one million times is subject to related obligations under the amended law. SNPs can apply to the ICTA to verify their claim regarding the number of daily users. If, as a result of the investigations by the ICTA, the number of users are determined to be consistently below the one million threshold, the SNP may be exempted from additional obligations imposed by the Principles and Procedures.
The Procedures and Principles also clarify that online services that offer social interaction as a secondary and ancillary service, e.g., individual websites, e-commerce platforms and news sites, fall outside the scope of the definition of an SNP.
2.Which SNPs should appoint representatives in Turkey?
The Procedures and Principles state that foreign (non-Turkish) SNPs are obliged to appoint an authorised person as a representative in Turkey. Representatives can be legal entities or natural persons. However, if the appointed representative is a legal entity, it must be established in accordance with Turkish law; if the appointed representative is a natural person, that person must be a Turkish citizen.
3.What language can be used in applications made by individuals? How will the application proceed?
Both domestic and foreign SNPs are obliged to respond to the applications of individuals regarding the violation of their personal rights or right to privacy. To support those who make such applications, the ICTA has stated that SNPs must offer applicants the opportunity to apply in the Turkish language. Applications made in the Turkish language must also be answered in the Turkish language. The SNP is obliged to respond to applications within 48 hours at the latest. If the response is negative, the SNP must also state the reasoning behind the refusal.
4.Which user data must be hosted in Turkey?
The Amendments stipulate that the user data of SNPs must be hosted in Turkey. However, the scope of this obligation under the Amendments is unclear. The Principles and Procedures have also not provided a satisfactory answer to this lack of clarity regarding the data that must be held in Turkey, stating only that priority is given to "basic user information" and other information to be determined by the ICTA regarding data to be hosted in Turkey.
5.What are the sanctions for non-compliance?
- As mentioned above, Facebook has announced that it will not comply with the Amendments to Law No. 5651 and will not appoint a representative in Turkey. The Amendments set out a five-tier system for administrative sanctions, which increase gradually over time if the SNP fails to comply with the legislation.
i. Firstly, the ICTA shall determine the SNPs obliged to appoint a representative that have not yet done so and warn them regarding this obligation. If the SNP fails to appoint a representative after 30 days from the date notification is received, the ICTA may impose an administrative fine in the amount of TRY 10 million (approximately EUR 1.1 million).
ii. If after 30 days from the imposition of the first sanction, if there is still no representative of the relevant SNP, an additional administrative fine of TRY 30 million (approximately EUR 3.2 million) may be imposed.
iii. If the SNP continues to not appoint a representative after 30 days from the second sanction, measures regarding the prohibition of receiving new advertisements will be implemented.
iv. If the SNP continues to fail to appoint a representative, the ICTA may reduce the SNP's internet traffic bandwidth by 50% after three months from the date of notification regarding the advertisement ban.
v. Lastly, the internet bandwidth of the relevant SNP may be decreased by 90% after 30 days from the last notification regarding the first bandwidth restriction.
- In addition to the above, SNPs that fail to fulfil the obligation to respond to the applications of their users will face an administrative monetary fine of TRY 5 million (approximately EUR 530,000).
- At the same time, all SNPs are obliged to submit a semi-annual report to the ICTA regarding their responses to applicants and the implementation of the ICTA's decisions that are notified to the SNP regarding the removal of content and/or blocking access to content. If an SNP fails to fulfil the obligations to submit the semi-annual report, the ICTA may impose an administrative monetary fine in the amount of 10 million Turkish Liras (approximately. EUR 1.1 million).
With the Procedures and Principles published by the ICTA, some issues that were not clarified within the scope of the Amendments to Law 5651 have become more clear and prominent. In particular, the questions that arose from the wide definition of SNPs have been addressed. In order to continue its activities in Turkey, SNPs with more than one million users should also consider secondary legislation, in addition to Law No. 5651. The extent to which SNPs will choose to comply with the new regulations remains to be seen and is widely anticipated.
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.