Act No. 5651 on the Regulation of Publications Made in the Internet Environment and Combating Offences Committed Through Such Publications was substantially amended by an act adopted on 29 July 2020. The amendment seeks to establish a stronger legal framework for online publications, having regard to the social effects of the internet and social media and to the responsibilities they bring with them.
Below we address this concept, the application mechanism, the time limits and the sanctions.
The Concept of Social Network Provider
The provisions that entered into force with Act No. 7253 Amending the Act on the Regulation of Publications Made in the Internet Environment and Combating Offences Committed Through Such Publications, adopted on 29.07.2020, introduced into the legislation a new concept called the social network provider. The statutory definition is as follows:
Act No. 5651 Art. 2
“Social network provider: means natural or legal persons who, for the purpose of social interaction, enable users to create, view or share content such as text, images, sound and location in the internet environment.”
The concept is not limited to those who act as intermediaries in the production of content; those who make it possible for posts to be viewed or disseminated are also within its scope.
Request for Removal of Content in Personality Rights Infringements
In the period before the amendment, natural persons, legal persons, institutions and organisations asserting that their personality rights had been harmed by content in the internet environment could request only the blocking of access; the addressee of the application was first the content provider and, where that provider could not be reached, the hosting provider. The new provision has granted those persons an additional possibility, giving them the right to request that the unlawful part of the content be removed from publication.
A person subjected to an infringement may, if they wish, without using that route at all, apply directly to the criminal judgeship of peace and request the removal of the content or the blocking of access. Where an application is made to the hosting or content provider, that request must be answered within 24 hours at the latest.
Where an application is made directly to the criminal judge of peace, the judge decides on the request within 24 hours and without holding a hearing. Depending on the nature of the concrete case, the blocking of access or the removal of the content may be ordered. The decision given is transmitted directly to the Association of Access Providers; the Association in turn conveys the decision to the content, hosting and access providers concerned. A decision to block access or to remove content sent by the Association must be complied with by the content and hosting providers concerned within four hours at the latest. For detailed information on the routes that may be pursued individually, our note entitled Internet Offences and Their Penalties may be consulted.
The 2020 amendment did not stop there. Upon the request of a person whose personality rights have been infringed by reason of the content of a publication in the internet environment, the judge may rule that the applicant’s name is not to be associated with the internet addresses that are the subject of the decision. Within the same framework, the Act also lays down separately how it is to be indicated, in such decisions, to which search engines notification is to be made by the Association of Access Providers.
Can an Application Be Made to the Platforms Themselves?
Persons whose rights have been infringed by content on channels such as Twitter, Instagram or Facebook may also apply directly to the platform. The social network provider is obliged to give a positive or negative answer to such applications within 48 hours at the latest. Where the request is refused, it is a statutory requirement that the answer given be reasoned.
Sanction for Failure to Answer an Application
An administrative fine of TRY 5,000,000 (five million Turkish lira) may be imposed on social network service providers that fail to discharge the obligation to answer. Providers are also required to report to the authority on such applications at six-monthly intervals. The first report due was to be submitted in January 2021, but in practice it was transmitted in June. The penalty prescribed for providers that neglect the reporting obligation is TRY 10,000,000 (ten million Turkish lira).
Compensation for Loss Arising from Unlawful Content
Where the unlawfulness of content has been established by a decision of a judge or a court and this has been notified to the social network provider, the necessary measure must be taken within 24 hours. Where no action is taken within that period, the provider is held liable to make good the loss that arises. That liability does not require that the content provider be held liable or that an action be brought against it.
Sanction of Blocking Access and Removing Content
Before the amendment, where a publication in the internet environment was found to be unlawful, the only decision the courts could give was the blocking of access. With the new provision, judicial authorities may now also order the removal of content directed solely at the unlawful part of the publication.
For detailed explanations concerning these procedures, our note entitled Blocking Access to and Removing Internet Publication Content may be examined.
Administrative Fines Applicable to Hosting Providers
The Act defines the hosting provider as natural or legal persons who provide or operate the systems that host services and content. The hosting provider is not obliged to monitor the content it hosts or to investigate whether an unlawful activity exists; it must, however, remove that content from publication once it is notified that the content is unlawful. By the act adopted on 29.07.2020, the administrative fine attached to that obligation was increased and set at between TRY 100,000 and TRY 1,000,000. Those amounts are raised each year on the basis of the revaluation rates announced.
Representative Requirement for Providers Exceeding One Million Daily Users
Foreign-based social network providers with more than one million daily accesses from Türkiye must now designate at least one authorised person in Türkiye in the capacity of representative. The contact details of that authorised person must appear on the website in a directly accessible and readily visible manner. The representative is charged with answering applications made under the Act and with discharging its obligations. Where the representative is designated as a natural person, that person must in addition be a Turkish citizen.
Sanction for Not Having a Representative
Where the obligation is not complied with, the process operates in stages.
First, notification is made to the provider by the authority; if the obligation is not discharged within thirty days following the notification, an administrative fine of ten million Turkish lira is imposed.
If the obligation is still not discharged within the thirty-day period running from the service of that fine, a second administrative fine, this time of thirty million Turkish lira, is imposed.
Where the obligation is not complied with despite service of the second fine, the placing of new advertising with the social network provider concerned is prohibited. For that reason a penalty blocking money transfers is also applied.
If three months have passed since the advertising ban decision and the obligation has still not been met, an application may be made to the criminal judgeship of peace. The subject of that application is the narrowing of the provider’s internet traffic bandwidth by fifty per cent.
If, notwithstanding acceptance of the application, the obligation is still not discharged within thirty days, a fresh application may be made to the criminal judgeship of peace. The subject of the second application is the narrowing of the bandwidth by up to ninety per cent.
Where the provider designates and notifies its representative, only one quarter of the administrative fines imposed is collected; the advertising ban is lifted and the judicial decisions become void of their own accord.
Hosting of User Data in Türkiye
The provision has also imposed on providers with more than one million daily accesses, irrespective of whether they are domestically or foreign based, an obligation to host the data of users in Türkiye within the country’s borders.
Proposed Amendments on the Agenda
The main axis of the bill expected to be submitted to the Grand National Assembly of Türkiye is the bringing of those working in internet media within the scope of the Press Act. It is anticipated that the bill will be prepared under the heading “Combating False News and Disinformation”, and that, for news items constituting disinformation, the sanction will be made conditional on their being “organised, structured and directed at a particular purpose”. The establishment of a new unit within the Information Technologies Board and the carrying out of supervision to prevent the spread of false news are also among the expectations. A further heading on which change is expected is the introduction of an imprint, address and notification requirement for internet media.
Although the Act has imposed a representation requirement on organisations with more than 1 million daily accesses, in practice difficulties are experienced in reaching those representative offices. For that reason, an increase in the number of persons to serve in the representative office is also among the planned amendments.
Frequently Asked Questions
Can an Application Be Made Directly to the Criminal Judgeship of Peace?
Persons who are of the view that content in the internet environment infringes their personality rights may apply directly to the criminal judgeship of peace, without making any intermediate application.
Can a Decision Blocking Access Be Challenged?
An objection may be lodged against a decision blocking access. The objection must be made within 7 days running from the service of the decision or from the date on which it was learned of.
Can Pecuniary Damages Be Claimed for Unlawful Content?
Social media allows information, whether accurate or false, to spread within a very short time. Unlawful content may in this way give rise to concrete pecuniary loss such as the loss of customers; the person suffering the loss may bring an action for pecuniary damages.
Independent Legal Assessment
The amendment has strengthened protection in two respects: the rights holder has been given the possibility of a more proportionate request, such as the removal of content rather than the blocking of access, and a graduated and strongly deterrent sanctions regime has been established for providers. What is decisive in practice is the proper management of the short time limits the Act allows. For corporate actors, the representative, reporting and data hosting obligations are compliance headings that generate direct financial risk.
In a concrete file or compliance exercise we give priority to the following points:
- Recording the content in question, in terms of date, link and image, in a form capable of carrying evidential value
- Making the choice between an application to the platform and an application to the criminal judgeship of peace according to the speed with which a result can be obtained
- Calendaring the 7-day period for objecting to decisions blocking access
- Tying representative notification, six-monthly reporting and data localisation to a compliance timetable on the providers’ side
Independent Legal provides advisory and litigation services in personality rights infringements arising from internet publications and in the regulatory compliance processes of digital platforms.