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Legal Alerts

31/07/2020

Social Media Related Amendments to the Internet Law

Legal Alerts
IT & Communications
General

Recent Development

The amendments to the Law No. 5651 on the Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts (“Internet Law”) regarding social media platforms and online services was published in the Official Gazette No. 31202 on July 31, 2020 (“Amendments”). The Amendments aim to regulate social media platforms by introducing “social network providers” into the Internet Law and their obligations in terms of operations. The Amendments are available online here (in Turkish). You may find below a detailed summary of the changes introduced by the Amendments to the Internet Law.

What’s New?

The Amendments may be separated as those related to social network providers and other amendments.

I. Social Network Providers

The Amendments introduce the term “social network providers” into the Internet Law. Social network providers are defined as natural persons or legal entities that provide the means for users to create, view or share content such as text, image, audio or location on the internet for the purposes of social interaction.

The Amendments impose certain obligations on social network providers based on their “daily access count from Turkey” and based on whether they are established in Turkey or abroad. The Amendments do not provide the criteria for calculating the daily access count.

– Obligations of Social Network Providers

The following obligations apply to social network providers “with more than 1 million daily access counts from Turkey”:

a. Representative requirement: Foreign social network providers must appoint at least one person in Turkey as their representative and notify the representative’s information to the Information and Communication Technologies Authority (“ICTA“). If the representative is a natural person, they must be a Turkish citizen. Foreign social network providers must authorize their representative to take the necessary actions for and respond to requests and notifications received from the individuals, the ICTA, the Access Providers Union (tr. ESB) and any other judicial or administrative authority in Turkey, and to comply with other obligations under the Internet Law. Social network providers must indicate the contact details of their representatives on their websites.

b. 48 hours response time for removal requests: Social network providers (foreign and domestic) must respond to content removal requests based under Article 9 of the Internet Law (violation of personal rights) and Article 9/A of the Internet Law (violation of privacy) within 48 hours. If the request is rejected, the response should provide the reasons behind the decision. Social network providers must complete all necessary procedures to comply with this obligation within three months as of the entry into force of the relevant provision on October 1, 2020 (i.e. the deadline is January 1, 2021).

c. Bi-annual reports: Social network providers (foreign and domestic) must provide to the ICTA bi-annual statistical and categorical information reports about all requests received under Articles 9 and 9/A of the Internet Law, along with the implementation of content removal/access blocking decisions. Reports concerning requests under (b) above should be published on the social network provider’s website after having been cleared of any personal data. Social network providers must submit the first report to the ICTA and publish it on its website by June 2021.

d. Data localization: Social network providers (foreign and domestic) must take the necessary measures to retain the data of their Turkish users in Turkey.

e. 24 hours execution time for removal / access blocking: Social network providers (foreign and domestic) are responsible for the indemnification of any damages arising from content that a court or a judge deemed unlawful if they fail to remove or block access to the relevant content within 24 hours as of the notification. The requesting party is not required to apply to the content provider or file any lawsuit against the content provider, in order to seek remedy from the social network provider pursuant to this liability.
The obligation under (e) above applies to all social network providers regardless of their daily access count or residence.

– Sanctions

Violation of representative requirement: In case of failure to comply with the representative requirement, the ICTA may notify the foreign social network provider and request compliance within 30 days. If the foreign social network provider fails to appoint and inform ICTA of a representative within 30 days:

  • The ICTA imposes an administrative fine of TRY 10,000,000 (approx. USD 1,500,000).
  • If the foreign social network provider does not appoint a representative and notify the ICTA within 30 days after the imposition of the above administrative fine, the ICTA may impose an additional administrative fine of TRY 30,000,000 (approx. USD 4,500,000).
  • If the foreign social network provider does not appoint a representative and notify the ICTA within 30 days after the imposition of the second administrative fine, the ICTA prohibits natural and legal persons from (i) giving advertisements to, (ii) executing agreements with, or (iii) transferring money in relation thereto to the relevant social network provider.
  • If the foreign social network provider does not appoint a representative and notify the ICTA within three months after the advertisement ban, the ICTA may resort to a court of peace (single judge) and request that the provider’s internet bandwidth be reduced by 50%.
  • If the provider fails to appoint a representative within 30 days after the implementation of the first bandwidth reduction, the ICTA may resort to a court of peace to request that the provider’s internet bandwidth be reduced to up to 90%.

Violation of 48 hours response time: The ICTA may an impose administrative fine of TRY 5,000,000 (approx. USD 750,000) on providers failing to respond to content removal requests within 48 hours (refer to (b) above).

Violation of bi-annual reporting requirement: The ICTA may impose an administrative fine of TRY 10,000,000 (approx. USD 1,500,000) on providers failing to comply with the bi-annual reporting obligation.

In addition, for social network providers “with more than 1 million daily access counts from Turkey”, administrative fines imposed based on Articles 8 and 8/A will be imposed as TRY 1,000,000 (approx. USD 150,000), whereas judicial fines based on Article 8 and Article 9 will be imposed as 50,000 days (i.e. between TRY 1,000,000 and TRY 5,000,000) (approx. USD 150,000 and USD 750,000). In every case of repetition of the non-compliance within one year, the fines will be doubled.

Below is a brief summary of social network providers’ obligations and the applicable sanctions.

ObligationsSanctionsResponsible Party
Representative requirement1st stage: Administrative fine of TRY 10,000,000 (approx. USD 1,500,000)

2nd stage: Administrative fine of TRY 30,000,000 (approx. USD 4,500,000)

3rd stage: Advertisement ban

4th stage: Internet bandwidth reduction by 50%

5th Stage: Internet bandwidth reduction up to 90%

Foreign social network providers with more than 1 million daily access from Turkey
48 hours response timeAdministrative fine – TRY 5,000,000 (approx. USD 750,000)Domestic and foreign social network providers with more than 1 million daily access counts from Turkey
Bi-annual reporting requirementAdministrative fine – TRY 10,000,000 (approx. USD 1,500,000)Domestic and foreign social network providers with more than 1 million daily access counts from Turkey
Data localizationNo explicit sanctionDomestic and foreign social network providers with more than 1 million daily access counts from Turkey
24 hours execution time for removal / access blockingIndemnification of any damages arising from the contentAll social network providers

– Effective Date

The provisions introducing the definition of the social network provider, setting forth their obligations and determining the relevant sanctions will enter into force on October 1, 2020, while the rest of the amendments explained below will be effective as of the publication date.

– Social Network Providers / Hosting Providers / Content Providers

The Amendments explicitly state that compliance with the foregoing obligations as a social network provider does not remove any of the responsibilities and obligations the social network provider might have as a content or hosting provider. In other words, an entity might be considered a social network provider in addition to being a hosting or content provider.

II. Other Amendments

– Formal Service of Notifications / Decisions

The Amendments also allow the ICTA to serve any notification regarding administrative fines to foreign operators through the contact details available on their website, stating that any such service will be deemed a formal service in accordance with the Notification Law No. 7201. The foreign operator will be deemed notified at the end of the fifth day following the notification.

– Hosting Provider Notification & Obligations

The Amendments increase the administrative fine ranges imposed on hosting providers who fail to notify the ICTA of their presence (“hosting provider notification“) or comply with the requirements set forth for hosting providers under the Internet Law. The range of administrative fines was set forth as TRY 10,000 – TRY 100,000 (approx. USD 1,500 and USD 15,000) and the new range is determined as TRY 100,000 – TRY 1,000,000 (approx. USD 15,000 and USD 150,000).

– New Obligations for Content and Hosting Providers: Content Removal Decisions and Four-Hour Execution Time

The Amendments amend Articles 8 (catalogue crimes) and 9 (infringement of personal rights) of the Internet Law, and clarify that courts can now render content-specific removal decisions instead of access blocking decisions on the websites/platforms in cases where the unlawful content can be directly removed. However, this imposes a separate obligation on content and hosting providers. Accordingly, content and hosting providers will also be notified of content removal/access blocking decisions based on Articles 8 and 9 so they can take the necessary actions.

Moreover, the Amendments amend the compliance obligation with content removal and access blocking decisions under Article 9. The Amendments explicitly state that content providers and hosting providers are also required to comply with content removal and access blocking decisions within four hours as of notification (the previous obligation was only for access providers).

– Traffic Data: Port Numbers

The Amendments add port numbers to the scope of traffic information that needs to be stored as part of the retention requirements applicable to access providers and hosting providers.

– Search Engines: “Do Not Associate Orders”

The Amendments provide that, if someone whose personal rights were violated due to content broadcast on the internet issue a request, the judge may order that the name of the requesting party is not associated with the URLs subject to the access blocking decision. The judge should indicate within the decision the search engines that will execute the decision, and notify the Access Providers Union accordingly.

Conclusion

The Amendments introduce the term “social network provider” to the Internet Law along with obligations for these providers. It also imposes new obligations on content providers and hosting providers. The Amendments clarify that the judicial authorities can now render content-specific removal decisions instead of access blocking a website if the unlawful content can be removed from the site.

In terms of time-sensitive obligations, social network providers must take the necessary steps (i) to establish the internal procedures to comply with individual content removal requests within three months as of the effective date and (ii) to submit their first bi-annual reports to the ICTA and publish them on their websites by June 2021. Foreign social network providers must appoint a representative in Turkey and/or be ready to appoint one within 30 days in case of a possible notification from the ICTA on the matter as of October 1, 2020, the effective date of the obligation.

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