The expansion of internet and social media use has resulted in acts such as insult, threat and sexual harassment being carried over into these channels as well. A great many people suffer harm on account of such posts, their personality rights are impaired and their spheres of private life are targeted. The legislature has provided for special legal mechanisms with a view to remedying the resulting prejudice in the shortest possible time. Thanks to these mechanisms it has become possible to have content that constitutes an offence or causes prejudice to others removed from publication. Beyond that, in certain cases listed in the Act, the removal of content may also be ordered on the ground of the public interest.
As a rule, a request for the removal of a post on the internet is addressed to the Criminal Judgeship of Peace. In certain situations, however, the blocking of access may be requested by applying directly to the Information and Communication Technologies Authority.
In every case, it is also open to a person harmed by a post to give notice to the content provider, the platform or the body providing access and request that the content be removed from publication.
The Concept of Unlawful Content
The Act has confined the cases in which a post may be removed from publication to particular grounds. Because the publication and display of content on the internet is intertwined with fundamental rights and freedoms such as freedom of expression, the right to obtain information and freedom of the press, the situations in which a removal decision may be given are expressly regulated in the Act. For the process to operate, the content must first bear an unlawful character.
As regards Act No. 5651, publications and content in respect of which there is sufficient ground for suspicion that they constitute the offences listed in the four sub-paragraphs of Article 8 of that Act are deemed unlawful, and removal of the content is provided for in respect of them.
In the same way, posts that cause harm to the privacy of private life or to personality rights are also regarded as unlawful, and it is laid down that they may be removed within the scope of the Act.
The Legal Framework Governing Internet Publications
Serious offences are at times committed unwittingly in the internet environment, also referred to as the virtual world. A significant proportion of users, in the belief that they cannot be traced, may engage in unlawful conduct from their own accounts, or from fake accounts opened for that purpose, 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, increasing exponentially worldwide, have brought with them debates as to the legal position of the content; states have turned towards providing protection by adapting their legislation to that development. The basic instrument governing the subject is Act No. 5651.
In addition, the spread of social media use since 2007 and the increase in offences committed through these platforms have made supplementary regulation essential. Indeed, the amending Act No. 7253 adopted on 29.07.2020 – by its full name the Act Amending the Act on the Regulation of Publications Made on the Internet and Combating Crimes Committed by Means of Such Publications – was published in the Official Gazette of 31.07.2020 and entered into force on the same date.
Conditions for the Removal of Content
Certain posts made over the internet may give rise to the commission of an offence, to the violation of personality rights or to an infringement of the privacy of private life. Our legislation affords the person harmed in such cases the opportunity to request the removal of the content. What is more, in certain situations concerning the public, removal decisions may also be taken of the authority’s own motion. Under the rules, the removal of content from publication comes into question in the following cases:
- Infringement of personality rights,
- Impairment of the privacy of private life,
- The commission of an offence by means of internet publications,
- The existence of cases where delay would be prejudicial.
Commission of Offences Through Internet Publications
Where "sufficient suspicion of an offence" has arisen to the effect that one or more of the catalogue offences below has been committed through publications made on the internet, removal of the content or blocking of access may be ordered. Those offences are as follows:
- Incitement to suicide (Turkish Penal Code No. 5237, Art. 84)
- Sexual abuse of children (Turkish Penal Code No. 5237, Art. 103(1))
- Facilitating the use of narcotic or stimulant substances (Turkish Penal Code No. 5237, Art. 190)
- Supply of substances dangerous to health (Turkish Penal Code No. 5237, Art. 194)
- Obscenity (Turkish Penal Code No. 5237, Art. 226)
- Prostitution (Turkish Penal Code No. 5237, Art. 227)
- Providing a place and facilities for gambling (Turkish Penal Code No. 5237, Art. 228)
- The offences set out in the Act No. 5816 on Offences Committed Against Atatürk
- The offences set out in the Act No. 7258 on the Regulation of Betting and Games of Chance in Football and Other Sports Competitions
- The offences set out in the first and second paragraphs of Article 27 of the Act on State Intelligence Services and the National Intelligence Organisation
Cases Where Delay Would Be Prejudicial
The situations listed below are assessed as cases where delay would be prejudicial, and in these cases the removal of content may be ordered, to be implemented immediately or within four hours at the latest:
- Protection of the right to life
- Securing the safety of persons and property
- Protection of national security and public order
- Preventing the commission of an offence
- Protection of public health
In some of these urgent situations the decision may be given directly by the President of the Information and Communication Technologies Authority. The cases in which the President may exercise this power are as follows:
- The Presidency, or the protection of national security and public order,
- The prevention of the commission of an offence,
- The protection of public health.
Where the grounds listed are present, the power to take a decision is afforded to the President of the BTK upon the request of the relevant ministries. The decision given by the President is notified without loss of time to the content and hosting providers concerned. On the other hand, the decision must be submitted for the approval of the criminal judge of peace within the twenty-four-hour period following its adoption. A period of forty-eight hours is provided for the judge to notify the outcome of the review. Once that period expires, a decision that has not passed through approval lapses of its own accord.
An administrative fine is imposed on content, hosting or access providers that fail to carry out removal decisions given in cases where delay would be prejudicial.
In the cases listed above, it is also open to the President to lodge a criminal complaint against the persons who created and disseminated the content. The criminal complaint must be made to the office of the chief public prosecutor, either by petition or by being recorded at the prosecutor’s office.
Infringement of Personality Rights
Personality rights may suffer harm on account of a publication made on the internet. For that result to arise it is not additionally necessary that an offence have been committed against the victim. For example, the use of expressions which contain no direct insult but which are capable of shaking a person’s reputation may also give rise to an infringement of personality rights.
Two options are open to a person harmed in this way:
- He or she may give notice to the content or hosting provider and request that the post be removed from publication. The content and hosting provider to whom the application is made must respond to that request within twenty-four hours.
- Alternatively, he or she may apply directly to the Criminal Judgeship of Peace and request the removal of the content.
Removal decisions given by the judge 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. A decision reaching a provider must be implemented without delay and within a period not exceeding four hours. A judicial fine may be imposed on content, hosting and access providers that do not comply with the decision of the criminal judge of peace.
Infringements Directed at the Privacy of Private Life
A person whose privacy of private life is impaired on account of a publication in the internet environment may apply directly to the Information and Communication Technologies Authority requesting the deletion of the content concerned. For the application to be processed by the BTK, the text must contain the following elements:
- The full address (URL) of the publication giving rise to the infringement.
- An explanation of which matters in that publication infringe the right.
- Information capable of establishing the identity of the applicant.
Upon the request received, the President of the BTK may make a notification to the Access Providers Association with a view to the necessary measures being taken.
A person who applies to the Authority 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 gives a decision on whether an infringement exists within forty-eight hours; the decision given is transmitted directly to the Authority.
In situations connected with an infringement of privacy in which urgent action is required, the content may be deleted by the Authority upon the order of the President, provided that the decision is subsequently submitted for the approval of the criminal judge of peace.
In every case, the person concerned by the post in respect of which a decision to block access or to remove content has been given may lodge an objection within 7 days of the date of service in order to request that the decision be lifted. The authority competent to examine the objection is the Criminal Judgeship of Peace following, by number, the one that ordered the removal of access.
A further dimension of the subject, the offence of infringing the privacy of private life, is a heading that must be assessed separately in terms of criminal liability.
Which Authorities May Give a Removal Decision?
Judicial Authorities
- The Criminal Judgeship of Peace
As regards the principles set out above, the power to give a removal decision at the investigation stage is vested in the Criminal Judgeship of Peace.
- The courts
Pursuant to Act No. 5651, this power passes to the court at the prosecution stage. The decision on the deletion of the content will accordingly be given by the court conducting the prosecution.
- The public prosecutor’s office
Although the authority competent to give a removal decision at the investigation stage is as a rule the Criminal Judgeship of Peace, in the cases where delay would be prejudicial explained above the public prosecutor may also take such a decision. The decision must, however, be approved by a judge.
A decision taken by a judgeship, a court or the public prosecutor is transmitted to the Information and Communication Technologies Authority for implementation without delay and within no more than four hours.
Criminal sanctions may be resorted to in respect of content, hosting or access providers that do not implement removal decisions, which are in the nature of protective measures.
Administrative Authorities
There are two administrative authorities that may take a removal decision within the scope of Act No. 5651: the Presidency and the President of the BTK.
- 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 give a removal decision directly, provided that the content or hosting provider is located abroad. Where, on the other hand, the offence constituted by the publication falls within 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 in which delay would be prejudicial are present – the protection of the right to life, of the safety of persons and property, of national security and public order or of public health, or the prevention of the commission of an offence – the President may likewise take a removal decision upon the request of the relevant ministries. The decision taken is submitted for the approval of the criminal judge of peace within a period of twenty-four hours; the judge gives a decision within forty-eight hours. Otherwise the decision lapses of its own accord.
Similarly, deletion requests addressed to the Authority by persons alleging that the privacy of their private life has been violated on account of a publication are transmitted by the President to the Access Providers Association for implementation. This decision too will be submitted for the approval of the criminal judge of peace within a period of 24 hours, and the judge will announce the outcome within no more than forty-eight hours.
One further situation affording the President the opportunity to act of his or her own motion is regulated in Article 9/A:
Act No. 5651, Art. 9/A
"In cases where delay would be prejudicial by reason of the infringement of the privacy of private life, the removal of the content shall be carried out by the Authority directly upon the order of the President."
The twenty-four-hour approval period and the forty-eight-hour period provided for the judge to announce a decision apply to decisions taken by this route as well.
- The Presidency
Article 8/A of the Act has also afforded the Presidency the opportunity to take a removal decision in cases where delay would be prejudicial. For this power to be exercised, the decision must be based on one or more of the grounds of protecting the right to life, the safety of persons and property, national security and public order or public health, or preventing the commission of an offence. The decision is submitted for the approval of the criminal judge of peace within a period of twenty-four hours from its adoption; if the judge makes no announcement within forty-eight hours, the decision becomes void of its own accord.
Removal Requests Under the Right to Be Forgotten
The right to be forgotten refers to a person’s ability to request the removal of a news item, image or video relating to an event experienced in the past where a long time has passed since its publication in the internet environment. The aim is thereby to remedy the prejudice caused to the person by content that has lost its currency. Which posts may be removed within the scope of this right is a matter of importance. In examining a request based on the right to be forgotten, a conclusion is reached having regard to the following matters:
- How long the content has remained in publication
- The subject and character of the post
- Whether the information retains its currency
- Whether the person who is the subject of the news item is publicly recognised
- The weight the news item carries in terms of the public interest
- Whether the content rests on a factual reality or on a value judgment
- Whether the post bears a historical character
- Whether public interest in the content is continuing
Removal of Social Media Posts
Applications such as TikTok, X (Twitter), Facebook, Instagram and YouTube today have an extremely large body of users. These channels at the same time increase the commission of offences and even facilitate the carrying out of certain acts.
Posts published on these platforms may from time to time constitute an offence, impair personality rights or the privacy of private life, or give rise to concerns in terms of the public interest. In such a situation it is possible, by applying to the Criminal Judgeship of Peace, to have this content removed as well where the conditions are met. Apart from this, the applications also have their own internal review mechanisms; persons may request the removal of content by applying directly to the platform.
- YouTube: The platform examines posts that impair copyright or the privacy of private life upon a complaint notification and seeks to prevent infringements of rights. For a video, users have the options of "Privacy Violation" or "Copyright Infringement Notification".
- Facebook: This is a heavily used channel on which posts of every kind, such as videos, photographs and text, may be published. The posts appearing there may also be unlawful; the removal of a post from publication may be requested through the "Facebook Complaint and Infringement Notification" channel.
- X (Twitter): One of the most widely used applications of our day, on which various infringements of rights may arise through words, photographs, videos and news items. Content review may be said to be relatively strict. The "X Rights Infringement Notification" channel is open to the reporting of every kind of infringement; review is therefore not confined to copyright or the privacy of private life alone.
- Instagram: The photographs and videos published here may likewise infringe the privacy of private life or other rights. In addition to the "Report" option that appears beside every photograph and video, the "Instagram Help Centre/Privacy and Safety Centre" channel may also be used for notification.
- TikTok: The application has established a review system under the heading "Community Guidelines Violations". Users may make a removal request within that scope and the content may be taken down by the platform. A warning is moreover sent to the user in breach; where warnings accumulate, or where there is a single infringement of a serious character, the account may be permanently closed.
Removal of Search Engine Results
Because search engines have a very wide reach, they are the principal means of reaching content and the sites on which that content is located. For this reason, the route by which content appearing on search engines such as Bing, Yandex or Google may be deleted is of separate importance. These companies, which generally operate on a global scale, take up for examination the applications of states, public institutions and courts.
Where an application is accepted, search engines remove the index information belonging to the sites on which the content is located. A page whose index information has been removed no longer appears in search results. This does not, however, mean that the content has disappeared; the post continues to remain on the site and merely cannot be found by way of a search. If the removal of the content itself is sought, an application must be made to the Criminal Judgeship of Peace by following the statutory procedure explained above.
The methods search engines have developed for notification are as follows:
- Google: It receives complaints of content infringement through the "Google Report Objectionable Content" channel and, where it concludes upon its examination that there has been an infringement of rights, removes the index information of the content concerned.
- Yandex: Where an infringement is in question, notification may be made through the "Yandex Help Centre". Unlike the other search engines, Yandex also has a contact office in Türkiye; problems of a legal character may also be conveyed directly to that office.
- Bing: On Bing, which attaches importance to infringements of rights and aims to act swiftly, particularly in infringements of personal rights, content may be reported through the "Bing Report a Concern" channel so that it is taken up for examination.
Independent Legal Assessment
The determining element in removal of content and blocking of access processes is the selection of the right authority at the right time. An infringement of personality rights, the privacy of private life and an allegation of a catalogue offence are subject to procedures that differ from one another; placing the request on the wrong legal footing may, in this field in which short time limits run, produce consequences that are hard to make good. The twenty-four-hour and forty-eight-hour approval periods and the four-hour implementation period show how quickly the process moves.
Another point frequently overlooked in practice is that the removal of content is not sufficient on its own. Since the same post may be republished from other accounts within a short time, structuring the removal request together with criminal investigation and compensation avenues affords more effective protection.
We recommend that the following headings be prioritised in preparing a concrete application:
- Recording the post that is the subject of the infringement, together with its URL, in time-stamped form against the possibility of its deletion
- Determining from the outset whether the request is based on an infringement of personality rights, on the privacy of private life or on a catalogue offence
- Assessing, in terms of speed and effect, the choice between a notification made directly to the platform and an application to the Criminal Judgeship of Peace
- Not missing the twenty-four-hour period for submission for approval provided for in the Act
- Establishing a monitoring mechanism against the possibility of the same content being republished on different accounts
- Giving reasons on the criteria of currency and public interest in requests based on the right to be forgotten
Independent Legal provides advisory and litigation services throughout the entire process in the field of information technology law, from applications for the removal of content and the blocking of access to the related criminal and compensation proceedings.