July 2020 – On 29 July 2020, important amendments were made by the Turkish parliament to the "Law on the Regulation of Broadcasts via the Internet and Prevention of Crimes Committed through Such Broadcasts" ("Law No. 5651"). Law No. 5651 is the main piece of legislation covering the dissemination of information on the Internet and until now did not directly cover content on social media.
Below is a summary of the main modifications related to Internet companies that the new law introduces.
A new type of service provider: Social Network Providers ("SNPs")
The amendments to Law No. 5651 create a new type of service provider—SNPs—which are defined as real or legal persons that enable users to create, view or share data such as text, image, sound, and/or location over the Internet environment for social interaction purposes. Global social media networks such as Facebook, Instagram and Twitter fall under this scope.
Appointment of a representative
The new law provides that any foreign-based SNP with a reach in Turkey exceeding one million users per day is required to fulfil the following obligations:
a) to appoint and assign at least one person as its representative in Turkey, to receive official notifications and other legal correspondence on behalf of the SNP and to notify the Information and Communication Technologies Authority ("ICTA") of the identity and contact details of the representative;
b) to publish the details of the representative on its website;
If an SNP does not fulfil the obligation to designate a representative, the ICTA will issue an official notice. If the relevant SNP fails to designate a representative within 30 days of this notice, an administrative monetary fine of TRL 10 million (approximately EUR 1.2 million) will be imposed on the relevant SNP. If the SNP continues not to comply with this obligation within 30 days, starting from the date of written notification of the administrative fine, an additional administrative monetary fine of TRL 30 million (approximately EUR 3.7 million) will additionally be imposed. If the obligation is not fulfilled within 30 days as of the second monetary fine, Turkish taxpayers will be prohibited from advertising on the relevant SNP. If the obligation remains unfulfilled within three months as of the prohibition of the placement of advertisements, the bandwidth of the SNP will be reduced by up to 50%. Eventually, the bandwidth will be reduced by up to 90% and in effect become unusable if the SNP does not end the violation within 30 days from the first bandwidth reduction.
Localisation of user data
Law No. 5651 now provides that any domestic or foreign SNP with a reach exceeding one million users per day in Turkey is required to store the personal data of their Turkey-located users within Turkey. The ICTA may impose an administrative monetary fine of TRL 5 million (approximately EUR 600,000) if the relevant SNP does not fulfil this obligation.
Right to be forgotten
The amendments have enhanced the scope of the protection granted to persons who claim that their personal rights have been violated. In this regard, any domestic or foreign SNP with a reach in Turkey exceeding one million users per day is required has to comply with the following:
a) to respond to individual requests, such as removal of content, denial of access to content, suspension of account, request for information on a suspect account made with regard to Article 9 and 9/A of Law No. 5651 within 48 hours from the submission of the application of the relevant individual;
b) to provide a report to the ICTA every six months that includes statistical and categorical information on the individual requests; and
c) to publish individual requests on its own website by pseudonymising the personal data they contain.
Additionally, persons may request from the court to disassociate their identities from content searches provided by the relevant SNPs where the court finds an infringement of personal privacy rights.
The ICTA may impose an administrative monetary fine of TRL 5 million if a relevant SNP does not fulfil its obligation under (a) above, and a fine of TRL 10 million for not fulfilling its obligation under (b) and (c) above.
In addition, if an SNP fails to enforce the ruling of a judge or a court on removal of content within 24 hours, the SNP shall be held liable for any losses that may be incurred as a result of the publication of the content.
Article 5 of the amendment provides a three-month transition period regarding the obligation to respond to individual requests within 48 hours. Other amendments will enter into force after the amendment is published in the Official Gazette.
The amendments to Law No. 5651 introduce significant changes to the regulatory environment of social media in Turkey. The amendments were approved by the Turkish parliament on 29 July 2020 and are expected to enter into force in a few days' time.
Originally published by Gen & Temizer Ozer/Kinstellar, July 2020
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