A recent law proposal which provides significant changes to the Law on Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651") was published on the Grand National Assembly of Turkey's ("TBMM") website on July 21, 2020 and on the Official Gazette on July 31, 2020 ("Amendment Law"). The Amendment Law primarily introduces obligations on social network providers with over 1 million daily accesses from Turkey.
- Obligations Introduced by the Amendment Law
1.Social Network Provider Definition
The Amendment Law defines social network provider as real persons or legal entities that enable users to create, view or share content such as text, images, sound, location for social interaction purposes on the internet medium.
2.Obligation to Appoint a Representative
The Amendment Law obliges foreign based social network provider ("SNP") which secures more than one million daily access from Turkey to assign at least one person as its representative in Turkey, who will be capable of meeting the requests, notifications or notices that will be sent by the Information Communications and Technologies Authority ("ICTA"), Access Providers Union ("APU"), and judicial or administrative authorities, and responding to the applications to be made by individuals within the scope of the Law No 5651, and fulfilling other duties therein. In case the representative is a real person, this person must be a Turkish citizen.
SNPs must include contact information of the representative in an easily visible and directly accessible manner on their website. SNPs are also obliged to report this person's identity and contact information to the ICTA.
The Amendment Law suggests a 5-tiered sanction mechanism that would apply respectively in case the SNP continues to violate this obligation within the given periods: (i) administrative monetary fine of 10 (ten) million Turkish Liras, (ii) additional administrative monetary fine of 30 (thirty) million Turkish Liras (in case the obligation is not fulfilled within 30 days), (iii) prohibition for the resident tax payers to place advertisements on the social network provider (in case the obligation is not fulfilled within 30 days as of the second monetary fine), (iv) bandwidth throttling up to 50% (in case the obligation is not fulfilled within 3 months as of the advertisement ban decision) and (v) bandwidth throttling up to 90% (in case the obligation is not fulfilled within 30 days as of the first bandwidth throttling).
3. 48 Hours to Respond to Individual Requests
Pursuant to the Amendment Law, SNPs which secure more than one million daily access from Turkey are obliged to provide a positive or negative response to the applications made with regard to the content that falls under the scope of Article 9 and 9/A of Law No. 5651 within 48 (forty eight) hours starting from the submission of the applications. In addition, negative responses should be given with the reasoning.
Administrative fine of 5 (five) million Turkish Liras might be imposed on SNPs which fail to comply with this obligation.
4. 24 Hours to Enforce Court Orders
The Amendment Law provides that SNPs will be liable for all of the damages arising from failure to remove or block access to content which is deemed unlawful with a judge or court order, within twenty four (24) hours.
5. Reporting Obligation
The Amendment Law requires domestic or foreign based SNPs which secure more than one million daily access from Turkey notify ICTA semi-annually on the reports in Turkish language including statistical and categorical information (i) regarding implementation of removal of content and/or access ban decisions and (ii) regarding the applications that fall within the scope of the applications based on Article 9 and Article 9/A of the Law No. 5651.
The Amendment Law also requires publication of the applications based on Article 9 and Article 9/A of the Law No. 5651 on SNP's own website by redacting the personal data in these reports.
Administrative fine of 10 (ten) million Turkish Liras might be imposed on SNPs which fail to comply with this obligation.
6. Data Localization
The Amendment Law introduces data localization requirements and obliges domestic or foreign based SNPs which secure more than one million daily access from Turkey to take the necessary measures to keep the personal data of the users in Turkey, in Turkey.
7. RTBF Reference
The Amendment Law also allows judges to decide on not associating the applicant's (whose personal rights are violated due to the content broadcasted on the internet) name with the websites subject to the decision. Per the Amendment Law, the decision will also indicate which search engines will be notified by the APU.
8. Notification Procedure
The Amendment Law enables notification of the administrative monetary fine decisions through electronic means to the foreign counterparts and indicates that this notice (i) has the capacity of the notification regulated under the Notification Law numbered 7201 and (ii) will be deemed to have been made at the end of the fifth day following the notification date.
9. Provisional Article
The Amendment Law provides a transition period with regard to the obligation to respond to individual requests within 48 hours and states that SNPs shall complete the necessary work to fulfill their obligations within 3 (three) months.
The Amendment Law entered into force as of July 31, 2020 except for the provisions related to SNPs". Provisions related to SNPs (i.e. Articles 1, 6 and 7 of the Amendment Law) will become effective on October 1, 2020.
Once the provisions as to "social network providers" become effective (i.e. October 1, 2020), there will be another transition period of 3 (three) months for complying with the obligation to respond to individual requests within 48 hours (i.e. January 1, 2021). As for the reporting obligation, the first report will be submitted to the ICTA in June 2021.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in September 2020. A link to the full Legal Insight Quarterly may be found here
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.
