A user may well hold copyright in the content he or she creates. Where that same content is published on a social media platform, however, the user’s control over it seldom amounts to full ownership. Platforms acquire a range of powers in respect of hosting the content, making it available to users and using it in a manner consistent with the operation of the system.
The source of this picture is the user’s acceptance of the terms of service at the registration stage. In other words, while the person who creates the content retains copyright, the moment that content is shared through the account the platform may also acquire certain rights to use, store and distribute it to other users.
Social media accounts are characterised in law as digital assets. Although users retain the copyright in the works they produce, under the user agreements they accept upon registration they do not become full owners of the platform on which that content is published.
An account may, on the other hand, carry the personal brand of its holder or of a content creator and may over time generate a measurable brand value. In that respect both the account itself and the content it hosts are open to discussion within the framework of personal property rights.
Ownership Rights and Their Types
Rights such as ownership, usufruct and pledge, which may be asserted against everyone in respect of a thing, are grouped under the heading of rights in rem. Of these rights, it is ownership that confers the widest powers on its holder. A person holding the capacity of owner is endowed with the power to use the thing, to derive benefit from it and to carry out any manner of disposition over it. Turkish Civil Code No. 4721 regulates ownership under two headings, as ownership of movable and of immovable property. Where the subject matter of the right consists of the economic and moral powers over a work, one speaks of intellectual property. Movable, immovable and intellectual property, together with digital property, are addressed separately below.
Ownership of Movable Property
Tangible things which by their nature may be carried from one place to another form the subject matter of ownership of movable property. Televisions, computers and furniture are among the examples that may be given of things of this kind.
Ownership of Immovable Property
The elements deemed to be immovable are exhaustively determined in Article 704 of the Turkish Civil Code. Accordingly, independent units registered in the condominium ownership register, independent and permanent rights entered on a separate page of the land register, and land itself bear the quality of immovable property.
Intellectual Property
Ownership is not peculiar to movable and immovable property alone; it also applies to ideas which have no physical existence and are the product of the human mind. The powers over products arising from a person’s creativity, intellectual effort and artistic production are addressed within the scope of intellectual rights. Intellectual property is divided essentially into two, namely copyright and industrial property rights.
Copyright affords protection to works that are the result of intellectual labour; the protection of an author’s book or a painter’s canvas against unauthorised reproduction is assessed under this heading. Trade marks, patents and designs fall within the group of industrial property and generally concern the commercial value, marketing and use of the product. The rules governing the field are found in Act No. 5846 on Intellectual and Artistic Works and in Industrial Property Act No. 6769.
The Digital Ownership Debate
The Turkish Civil Code has adopted the understanding that ownership may be established only over a thing. A thing, in turn, is defined as something which has a physical existence in the universe, over which control may be established, which falls outside personality values and which carries an economic value. Against this definition, the question arises whether an individual’s social media accounts or crypto-assets in the digital environment may be the subject of ownership.
When the elements of the concept of a thing are examined one by one, an interesting result emerges: although these virtual elements bear no corporeal quality and have no physical existence, they satisfy all the remaining features of the definition. Indeed, the user establishes control over his or her digital accounts and personally manages his or her own digital space; these assets display an existence separate from personality values. Where they are used for commercial purposes, it is also clear that they carry an economic value. For this reason, in assessing the ownership of digital assets, the purpose for which the account is used should be taken as the determining criterion.
The Distinction Drawn According to Purpose of Use
In examining a digital account from the standpoint of ownership rights, the nature of the account plays a determining role. In the decisions of the German Federal Court it may be seen that a threefold classification is made on the basis of the purposes for which social media accounts are used: accounts operated solely for personal purposes, accounts pursuing the aim of generating income, and mixed accounts in which both purposes are present together.
Accounts Used for Personal Purposes
Although there is no provision in our legislation directly governing the ownership of digital assets, and of social media accounts in particular, Article 653 of the Turkish Civil Code provides that certain items may be bequeathed in the character of personal keepsakes. Proceeding from this provision, it may be argued that social media accounts falling within the first group of the classification, opened solely for personal use, may be addressed within the framework of ownership rights and may form the subject of inheritance.
Accounts Used for Commercial Purposes
Generating income through social media profiles has today become a widespread field of activity. "YouTube" accounts, on which earnings are obtained by publishing videos, are the typical example. The legal nature of digital accounts that bring earnings to the user, and their fate after the holder’s death, are accordingly of great importance. It is possible for these assets, which have an economic value, to be accepted as things within the meaning of the Turkish Civil Code. Since income-generating accounts constitute an asset value, they are subject to ownership rights; indeed, there are in practice companies which operate solely on the transfer of accounts of this kind.
Bearing in mind that ownership rights also encompass the power of disposition, it may be concluded that accounts providing financial income are capable of passing by inheritance.
Accounts of a Mixed Character
Where an account is used for both commercial and personal purposes, a digital asset of a mixed structure is in question. In such cases an examination must be carried out specific to the user account concerned and it must be determined which purpose the use is predominantly directed towards.
The Effect of User Agreements on Ownership Rights
In almost all social media applications, a person wishing to create a membership is first obliged to accept the undertaking prepared by the company. These membership texts generally include a provision to the effect that "You may not sell, license or purchase any account or data obtained from our Services. This includes your username." That stipulation is of a character that impairs the account holder’s ownership rights.
Nevertheless, it is possible for contractual provisions of this kind to be regarded as general terms and conditions under our legislation and thus held invalid. For a contract to be lawfully concluded depends on the mutual agreement of the parties on the essential elements. Yet it is beyond dispute that social media membership texts afford the user no opportunity to object by saying "I do not accept this clause of the contract as it stands, let us amend it in such and such a way". For this reason, stipulations drawn up against the user with regard only to the platform’s interest may be treated as invalid on the ground that they are general terms and conditions. Indeed, where the account holder’s power of legal disposition is restricted, ownership rights are likewise infringed and rendered inoperative. For detail on the subject, our article entitled Invalidity of General Terms and Conditions in Contracts Against the Consumer may be consulted.
On the other hand, where it is determined that "conduct contrary to community standards" has been displayed through these applications, which have a powerful global influence, the account concerned may be closed. Such a measure renders ownership rights wholly incapable of exercise in respect of that account. Where this situation is encountered, recourse may be had, pursuant to additional Article 4 of the relevant Act, to bringing an action in the capacity of a consumer against the Türkiye representative office of the social media platform.
Intellectual Property Rights in Software and Service Agreements
Computer software and programs are regulated as intellectual works in the Act on Intellectual and Artistic Works. For this reason the rights of the person who creates a web application are protected by the provisions on intellectual property. The Act counts computer programs within the category of scientific and literary works (Art. 2 of the Act on Intellectual and Artistic Works). The powers conferred on the author of an intellectual work are divided into two, as economic and moral rights.
Within the scope of moral rights, the author has the power to disclose the work to the public, to require that his or her name be stated by way of indicating that the work belongs to him or her, to prevent alterations being made to the work, and to follow the fate of the work.
As regards economic rights, the powers conferred on the author are as follows:
- Reproduction of the work
- Adaptation of the work
- Performance of the work
- Distribution of the work
- Claiming a share in respect of the work
- Communication of the work to the public by means serving the transmission of signs, sound and/or images
Can Digital Assets Pass by Inheritance?
Upon a person’s death, the rights and debts he or she holds pass as a whole to the heirs. In other words, the event of death produces the result that rights and obligations pass collectively to the heirs; this principle is called universal succession and is regulated in Article 599 of the Turkish Civil Code. The entirety of the rights and debts a person leaves behind is termed the estate.
It must be accepted that a person’s digital assets likewise form part of the estate after death and pass to the heirs. Social media accounts operated for commercial purposes in particular, being a source that generates regular income and therefore carrying an asset value, pass directly to the heirs pursuant to Article 599(2) of the Turkish Civil Code. Even where an account has been used solely for personal purposes, its transfer to the heirs is possible by virtue of Article 563 of the Turkish Civil Code, which allows certain items to be bequeathed as personal keepsakes.
Virtual Property in Türkiye
In our country there is as yet no concrete legislative regulation founded on the principle of virtual inheritance. Not even Personal Data Protection Act No. 6698 (KVKK) can be said to be adequate and apt as regards virtual succession. Because of this lacuna, it may be said that the powers relating to social media accounts remain confined to the right of use granted to the member in the agreements concluded with service providers.
As noted in our study entitled Internet Offences and Their Penalties, offences such as insult, threat, sexual harassment and incitement of the public to hatred and hostility may be committed through social media accounts. Various sanctions have been attached to these acts, referred to in our legislation as information technology offences, and the commission of such offences by means of fake accounts has been separately regulated. The victims of these offences may lodge a complaint seeking the punishment of the perpetrators, and may also request that access to the content concerned be blocked and that it be removed from publication.
Beyond this, the fact that social media rests on a structure based on user production gives rise to serious problems in the field of copyright. It was noted above that the author of a work holds economic rights such as reproduction, distribution and sharing. The infringement of these powers occurs extremely easily in the social media environment; posts made without due awareness in particular give rise to infringements of this kind. Users who create content may resort to licensing their adaptation and distribution rights in order to prevent infringements. The licensing of each individual piece of content on a platform is not, however, a practical or apt solution. At this point users need to take care as to whether the content they share constitutes a copyright infringement.
Independent Legal Assessment
Most disputes concerning digital accounts arise from the contractual imbalance between the user and the platform. The absence of a direct provision in the legislation does not require the economic value of accounts to be disregarded; on the contrary, once the purpose for which the account is operated is established on the facts of the case, the general principles of property and succession law become capable of being applied. In income-generating accounts in particular, documenting that the account carries an asset value alters the course of the argument.
The following are the matters that should be addressed as a priority in a concrete dispute:
- Determining, on the basis of usage data, whether the account is of a personal, commercial or mixed character
- Subjecting the prohibitions on transfer and disposition in the membership text concluded with the platform to review as general terms and conditions
- Recording the income obtained through the account so as to document its asset value
- Assessing, in the case of account closures, the avenue of an action brought in the capacity of a consumer against the Türkiye representative office
- Reviewing the content shared from the standpoint of copyright and, where necessary, structuring a licensing arrangement
- Determining in advance, when inheritance planning is carried out, the access details and the intention as to the fate of the accounts
Independent Legal provides advisory and litigation services throughout the entire process in disputes arising from digital assets, from the examination of platform agreements to the passing of accounts by inheritance.