Where an internet publication is found to be unlawful, the authorities empowered to order that access to it be cut off or that the content be removed from publication are not gathered under a single heading. Who gives the decision varies according to the urgency of the case, the weight of the interest to be protected and the character the act bears in terms of criminal law. Judicial authorities such as the courts and the prosecutor’s offices may exercise this power, and administrative bodies such as the Presidency or the Information and Communication Technologies Authority may likewise step in in certain cases.
There is one criterion that must not be overlooked in determining the scope of these measures: the interference must be confined to publications that cause prejudice to individuals or impair the public interest. Where a publication contains a single post that exposes a person’s private life, the first remedy is the removal of that post, or the cutting off of access to it alone. Closing down the entire site where the offending part could be excised on its own produces a result that, this time, impairs the rights of other persons. Nevertheless, where partial blocking or a content removal measure is not sufficient to achieve the result the legislation aims at, a block directed at the whole of the site may come into question.
The basic framework of the subject is drawn by Act No. 5651 on the Regulation of Publications Made on the Internet and Combating Crimes Committed by Means of Such Publications. Where the situations listed in that instrument arise — such as an attack on personality rights, impairment of the privacy of private life, the prevention of crime, the public interest or the preservation of public order — it becomes possible to cut off access to the site hosting the unlawful content.
The Concept of Unlawful Content
The Act allows internet access to be halted or a publication to be removed on an exhaustive list of grounds. Because access to the internet is intertwined with fundamental rights and freedoms such as freedom of expression, the right to receive information and freedom of the press, the conditions under which a restriction may be imposed are expressly determined in the Act. For this mechanism to operate, there must above all be content of an unlawful character.
Article 8 of Act No. 5651 deems publications and content in respect of which there is sufficient suspicion that certain offences have been committed to be unlawful, and regulates the measures of blocking of access or removal of content in respect of them.
ARTICLE 8-
(1) In relation to publications made on the internet in respect of whose content there is sufficient ground for suspicion that it constitutes the following offences, removal of the content and/or blocking of access shall be ordered:
a) The offences set out in the Turkish Penal Code No. 5237 of 26/9/2004, namely;
1) Incitement to suicide (Article 84),
2) Sexual abuse of children (Article 103, first paragraph),
3) Facilitating the use of narcotic or stimulant substances (Article 190),
4) Supply of substances dangerous to health (Article 194),
5) Obscenity (Article 226),
6) Prostitution (Article 227),
7) Providing a place and facilities for gambling (Article 228).
b) The offences set out in the Act No. 5816 of 25/7/1951 on Offences Committed Against Atatürk.
c) (Added: 25/3/2020-7226/Art. 32) The offences set out in the Act No. 7258 of 29/4/1959 on the Regulation of Betting and Games of Chance in Football and Other Sports Competitions.
ç) (Added: 13/10/2022-7418/Art. 32) The offences set out in the first and second paragraphs of Article 27 of the Act No. 2937 of 1/11/1983 on State Intelligence Services and the National Intelligence Organisation.
Although they fall outside this catalogue, publications that impair the privacy of private life or constitute an attack on personality rights are likewise regarded as unlawful, and it is laid down that they may be removed within the scope of the Act.
The Legislative Framework Governing Internet and Social Media Posts
The internet, characterised as a virtual environment, is at times turning into a field in which serious offences are committed of which the perpetrator is not even aware. A significant proportion of users act on the assumption that they cannot be traced; using their own accounts, or fake profiles opened solely for that purpose, they may engage in unlawful conduct against persons with whom they are in dispute or against persons they do not know at all but whose views they do not share.
These posts, which are steadily multiplying worldwide, have brought with them debates as to the legal position of the content. States have gone down the path of establishing protective mechanisms by reshaping their legislation in line with this development. The instrument that essentially governs the subject in Turkish law is Act No. 5651.
On the other hand, the extraordinary spread of social media use since 2007 and the increase in offences committed through these channels have made supplementary regulation essential. In line with that need, Act No. 7253 Amending the Act on the Regulation of Publications Made on the Internet and Combating Crimes Committed by Means of Such Publications, adopted on 29.07.2020, was published in the Official Gazette on 31.07.2020 and entered into force.
Conditions for Resorting to the Measure
Certain publications made over the internet may prepare the ground for the commission of an offence and may equally impair personality rights or the privacy of private life. Our legislation affords the person harmed by such a publication the opportunity to request that access to the site be halted and that the content be removed. In certain cases concerning the public, it is also possible for these decisions to be taken of the authority’s own motion. Under the rules in force, the principal situations in which blocking of access or removal of content from publication may be ordered are as follows:
- The occurrence of an infringement directed at personality rights,
- Impairment of the privacy of private life,
- The commission of an offence by means of an internet publication,
- The existence of a public interest requiring protection.
Commission of an Offence Through an Internet Publication
Where "sufficient suspicion of an offence" has arisen to the effect that one or more of the catalogue offences listed above has been committed by means of an internet publication, removal of the content or blocking of access may be ordered.
Where a Public Interest Is at Stake
Pursuant to Article 8/A of Act No. 5651, where one of the grounds of protecting the right to life, the safety of persons and property, national security and public order, preventing the commission of an offence or preserving public health is present, removal of the content and/or blocking of access may be ordered by the Presidency of the Information and Communication Technologies Authority (BTK) upon the request of the relevant ministries. This procedure is entirely administrative in character and can be set in motion only upon a ministerial request. The aim pursued by the administration here is the protection of the public interest.
Infringement of Personality Rights
A publication made over the internet may cause harm to a person’s personality rights. In that event it is not additionally necessary that an offence have been committed against the victim. For example, even the use of expressions which do not amount to insult as such but which erode a person’s standing may give rise to an infringement of personality rights.
Two avenues are open to a person harmed in this way. The first is to give notice to the content or hosting provider and request the removal of the publication; the provider must respond to that request within twenty-four hours. The second option is to apply to the Criminal Judgeship of Peace without the need for any intermediate step and to request the blocking of access and/or the removal of the content.
Upon the application, the judge gives a decision. The point to be underlined here is this: where an infringement of personality rights is in question, the judge will as a rule give a blocking decision confined to the part that gave rise to the infringement. Unless it is necessary, access to the entire site is not closed off. Where, however, blocking confined to a particular part will not be sufficient to bring the infringement to an end, a block directed at the whole of the site may be applied; the judge is obliged to give reasons for that choice.
Blocking of access or content removal decisions given by the judgeship on the ground of an infringement of personality rights are transmitted to the Access Providers Association. The Association conveys the decision to the content, hosting and access providers concerned. The requirements of a decision served on a provider must be carried out immediately and within four hours at the latest. As regards providers that fail to carry out the requirements of the judgeship’s decision, the imposition of a judicial fine may come into question.
Infringement of the Privacy of Private Life
A person whose privacy of private life is impaired by an internet publication may apply directly to the BTK, requesting that access to the content concerned be cut off. For the request to be processed before the BTK, the application must contain the following elements:
- The full address (URL) of the publication giving rise to the infringement,
- Information establishing the identity of the applicant,
- An explanation of the respects in which the publication impairs the right.
The President of the BTK may notify the Access Providers Association, in line with the request reaching him or her, with a view to the necessary measures being taken.
A person who applies to the BTK on the ground that the privacy of his or her private life has been infringed must bring the matter before the criminal judge of peace for decision within twenty-four hours following the request. The judge decides whether privacy has been infringed within forty-eight hours; the decision given is transmitted to the Authority without any intermediary.
In cases where delay would be prejudicial, the order is reversed: access is first blocked by the Authority upon the order of the President of the BTK, and the measure is subsequently submitted to the approval of the criminal judge of peace.
Whichever procedure has been followed, the person concerned by the post in respect of which a blocking decision has been given may request that the decision be lifted. That request is raised by way of objection within 7 days of the date of service. The authority competent to examine the objection is the Criminal Judgeship of Peace following, by number, the one that gave the blocking decision.
For details on the subject, our study entitled Infringement of the Privacy of Private Life may be consulted.
Authorities Competent to Give the Decision
Judicial Authorities
The Criminal Judgeship of Peace. Within the principles set out above, the power to order the removal of content or the blocking of access belongs, at the investigation stage, to the Criminal Judgeship of Peace.
The courts. Pursuant to Act No. 5651, once the prosecution stage is reached the same power passes to the court. The blocking decision is accordingly given by the court conducting the prosecution.
The public prosecutor’s office. Although the power to decide at the investigation stage lies as a rule with the Criminal Judgeship of Peace, in situations assessed as cases where delay would be prejudicial the public prosecutor may also make such a decision. That said, a decision given by the prosecutor must pass through the approval of a judge. The cases where delay would be prejudicial are confined to the following grounds:
- The protection of public health,
- The right to life,
- The prevention of the commission of an offence,
- The protection of the safety of persons and property,
- The protection of national security and public order.
These decisions, made by a judgeship, a court or the public prosecutor, are notified, with a view to their requirements being carried out immediately and within four hours at the latest, to the Information and Communication Technologies Authority.
Criminal sanctions may be applied to content, hosting or access providers that fail to carry out the requirements of content removal and blocking decisions, which are in the nature of protective measures.
Administrative Authorities
The administrative authorities empowered to order the blocking of access within the framework of Act No. 5651 may be listed as the President of the Information and Communication Technologies Authority, the Presidency, and the administrative bodies concerned with games of chance within the scope of Act No. 5602.
The President of the Information and Communication Technologies Authority. As regards publications in respect of which there is sufficient suspicion that the offences listed in the Act have been committed, the President of the BTK may directly order the blocking of access, provided that the content or hosting provider is located abroad. Where, on the other hand, the offence forming the subject of the publication is sexual abuse of children, obscenity or prostitution, it is not required that the content or hosting provider be located abroad for the President to decide of his or her own motion.
Where grounds are present in which delay would be prejudicial, such as the right to life, the safety of persons and property, national security and public order, the prevention of the commission of an offence or the protection of public health, the President of the BTK may likewise order the blocking of access upon the request of the relevant ministries. Such a decision must be submitted for the approval of the criminal judge of peace within a period of twenty-four hours, and the judge must give a decision within forty-eight hours. If these steps are not completed, the measure lapses of its own accord.
Similarly, requests for the blocking of access addressed directly to the BTK by persons alleging that the privacy of their private life has been infringed by an internet publication are notified by the President of the BTK to the Access Providers Association for implementation. The decision is submitted for the approval of the criminal judge of peace within 24 hours and the judge announces the decision within forty-eight hours at the latest.
Article 9/A of the Act provides for one further situation affording the President of the BTK the opportunity to act of his or her own motion: "In cases where delay would be prejudicial by reason of the infringement of the privacy of private life, the blocking of access shall be carried out by the Authority directly upon the order of the President." The approval mechanism operates in respect of these decisions made by the President of his or her own motion as well: the decision is submitted for the judge’s review within a period of twenty-four hours, and the judge announces the decision without exceeding forty-eight hours.
The Presidency. Article 8/A of the Act has also afforded the Presidency the opportunity to give a blocking decision in cases where delay would be prejudicial. The exercise of this power depends on the presence of one or more of the grounds of protecting public order and national security, the right to life, the safety of persons and property, the prevention of the commission of an offence or the protection of public health. The decision must be submitted for the approval of the criminal judge of peace within a period of twenty-four hours; if the judge has not announced a decision although forty-eight hours have passed, the measure becomes void of its own accord.
The administrative bodies concerned with games of chance within the scope of Act No. 5602. The institutions holding the right and power to organise games of chance under the relevant legislation, and the institutions, bodies and private-law legal persons to which that power has been transferred, may take blocking decisions in respect of the publications concerned where they establish that offences falling within their own fields of duty have been committed on the internet. The decisions taken are transmitted to the Information and Communication Technologies Authority for implementation.
Technical Methods of Implementing Decisions
Different technical methods may be used in giving effect to a blocking decision.
Blocking of access to the site’s domain name. Under this procedure, access is cut off by closing the domain name belonging to the site concerned on the domain name (DNS) servers. When an attempt is made to enter a site whose domain name has been blocked, the browser asks the DNS server for the site’s IP address; the server returns, instead of the site’s real IP address, the IP address of the page displaying the blocking notice, and access is thus not achieved.
Blocking of the part relating to the unlawful publication. Under this method, also referred to as object-based blocking, although the correct address is obtained from the DNS server and a connection is established to the correct IP address, the requests coming from the browser are continuously monitored by the internet service provider. During that monitoring, requests directed at the address containing the unlawful content are blocked; users are prevented from reaching that content alone, that is to say the blocking is confined to the unlawful part.
Blocking of the site’s IP address. An IP address is a distinguishing identity, expressed in figures, that enables devices taking part in internet communication to be told apart from one another and connections to be established between them. Under this method, the IP address belonging to the site concerned is rendered inaccessible within the system that makes IP addresses reachable, and is thereby neutralised.
Parties Responsible for Implementing Decisions
Those who will actually execute the blocking decisions given under the Act are the content providers, the access providers and the BTK. Which decision is to be executed by which body is regulated separately for each article.
- Decisions based on sufficient suspicion that the offences listed in Article 8 of the Act have been committed: the requirements of decisions given by the President of the BTK are carried out by the access providers; those given by a judge, a court or the public prosecutor are transmitted to the BTK for their requirements to be carried out. The requirements of the decision are completed within four hours at the latest from the moment of notification.
- Decisions based on one of the cases where delay would be prejudicial: the President announces the decision without delay to the access providers and to the hosting and content providers concerned. Within four hours at the latest from the moment notification is made, the content is removed and/or access is blocked.
- Decisions based on an infringement of personality rights: the decision made by the judge in this context is conveyed to the Access Providers Association without any intermediary. The Association transmits the decision to the hosting and content providers and to the access provider; those parties complete its requirements without delay and before the four-hour period expires.
- Decisions based on an infringement of the privacy of private life: blocking decisions made by the President of the BTK in line with the request of individuals are likewise transmitted to the Access Providers Association; the access providers implement the decision within four hours at most.
Objection Against a Blocking Decision
Blocking of access is a measure producing legal consequences similar to those of the protective measures in the law of criminal procedure. By virtue of that character, the avenue of recourse against the decision is likewise subject to the objection procedure provided for in the Code of Criminal Procedure.
Pursuant to Article 268 of the Code of Criminal Procedure, the period for objection is 7 days from the service of the decision or from the date it is learned of. The task of examining the objection belongs to the judgeship following, in order of number, the Criminal Judgeship of Peace that gave the decision.
Independent Legal Assessment
Requests for the blocking of access and the removal of content are in practice mostly processes that call for speed; they are, however, subject to a review of proportionality to the same degree. Requesting that an entire publication be closed down leads, in most cases, to the request being refused or being confined to a partial measure. For this reason, making the application concrete at the level of the URL that is the subject of the infringement, from the very first stage, stands out as a choice that directly affects the outcome.
The legal ground on which the decision is based likewise determines the procedure to be followed. While a request based on an infringement of personality rights proceeds through the Criminal Judgeship of Peace, as regards the privacy of private life an application to the BTK, and thereafter the twenty-four-hour judicial approval process, come into play. An application addressed to the wrong authority may cause losses of time that are hard to make good in measures with short deadlines.
In drawing up a road map on the facts of a given dispute, it is appropriate for the following headings to be assessed as a priority:
- Evidencing the content that is the subject of the infringement together with its full URL and in a manner containing a date and time stamp
- Clarifying from the outset whether the request is to be based on an infringement of personality rights or on the privacy of private life
- Giving reasons in the petition for the balance of proportionality between partial and site-wide blocking
- Diarising the twenty-four-hour judicial approval period where an application has been made to the BTK
- Correctly identifying the seven-day period for objection and the competent judgeship in the case of adverse decisions
- Raising the sanctions provided for in respect of providers that fail to carry out the requirements of the decision
Independent Legal provides advisory and litigation services throughout the entire process, from the preparation of applications for the blocking of access and the removal of content against unlawful publications on the internet to the conduct of the objection stage.