On 29.07.2020 the Turkish Parliament voted and agreed the proposed amendments on the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of such Publications w. no 5651 (“the Internet Law”).
The amendment has been published in the Official Gazette on 31.07.2020. Here are the changes brought with the amendment:
1- Adding the term “social network provider”
With the amendment, the term “social network provider” has been added into the Internet Law.
Social network provider is defined as a natural or legal person who enables users to create, view or share texts, images, voice, location or other types of data for the purpose of social interaction. With the new “social network provider” definition, the Internet Law sets forth specific obligations to social network providers.
Unfortunately, the term social network provider is too broadly defined, and it may even contain live chat applications and in-game/in-application chat. We evaluate user-to-user chat should have been clearly made exempt however this is not the case.
Having said that, since the purpose of the Law is to check and control the content that is publicly available, we evaluate that in practice, the provisions of the Internet Law shall not be applied to chat applications or in-game chat programs.
2- Extraterritoriality and Jurisdiction
For social network providers that are not located in Turkey, the amendment allows the Turkish State to directly serve and notify any administrative fine to social network providers through email or other means. The Turkish State may determine the address of the social network provider to notify and serve administrative fines through the contact information on service providers’ website or any via any other source such as IP address, domain name, etc.
The amendment sets forth that this notification and service shall be accepted as a legal and valid notification and the social network provider will be deemed to have received the notification after 5 days as of sending the notification.
This amendment may be risky for social network providers since it will be very difficult to keep track of notifications by the Turkish State unless the social network provider does not appoint a representative in Turkey.
3- Appointing a Representative
The amendment requires foreign social network providers (social network companies that are not established in Turkey) and have daily access of 1.000.000 or more from Turkey must appoint a representative in Turkey. 1.000.000 daily access does not mean 1.000.000 unique users daily. Multiple access by the same user counts towards this limit.
The representative can be a Turkish natural person or a legal person established in Turkey.
The social network provider must keep the contact information of the representative on the website to allow easy access by users.
In addition, the social network provider must report the representative’s information (entity name, contact) to the Information and Communication Technologies Authority. (“Authority”)
4- Data Localization
Foreign and Turkish social network providers with 1.000.000 or more daily access from Turkey must keep Turkish users’ (users from Turkey) personal data in Turkey.
5- Content Removal/Access Blocking
Foreign and Turkish social network providers with 1.000.000 or more daily access from Turkey must respond to content removal and access blocking requests by natural and legal persons within 48 hours. If the request is rejected, the legal basis for rejection shall be provided.
If the request is accepted, the social network provider must respond to the requesting natural or legal person and take appropriate action such as removing the content or blocking the access to the content.
Failure to meet the above requirement is subject to an administrative fine of TRY 5.000.000 (approx. $ 716.000).
Further, for application of content removal or access blocking decisions by judges, courts or administrative bodies., social network providers must remove the content or block the access to the content within 24 hours as of receiving the decision. Social network providers who fail to comply shall be responsible for all damages that may arise due to content.
Failure to implement the blocking or removal decisions by social network providers with 1.000.000 or more daily access from Turkey is subject to administrative fines of TRY 1.000.000 (approx. $ 143.000) and judicial fines of up to TRY 5.000.000 (approx. $ 716.000)
6- Reporting
Foreign and Turkish social network providers with 1.000.000 or more daily access from Turkey must submit a report to the Authority every six months showing the statistics on content removal and/or blocking access requests, decisions and applications of such.
7- Timeline and Other Fines
Social network providers will be given 3 months to comply with the requirements. This period shall start after the publication of the amended Law in the Official Gazette. At the end of this 3 month period, a five-stage sanction plan will be implemented for the obligation to appoint a representative:
i) The Authority will notify the social network providers that did not fulfill their obligations to appoint and report representatives. An administrative fine of TRY 10.000.000 will be applied to the social network providers that fail to fulfill their obligations within 30 days from the date of notification (approx. $ 1.433.000).
ii) If the social network provider does not appoint a representative within 30 days as of the first administrative fine, an additional administrative fine of TRY 30.000.000 will be applied (approx. $ 4.300.000).
iii) If the social network provider does not appoint a representative within 30 days as of the second administrative fine, real and legal persons in Turkey will not be allowed to use online advertising services of the social network provider and money transfers to the social network provider will be restricted.
iv) If the social network provider does not appoint a representative within 3 months as of the restriction of advertisement services, the Authority may request from the judge to narrow the bandwidth of the social network provider to 50%.
v) If the social network provider does not appoint a representative within 30 days as of step iv, the Authority may request from the judge to narrow the bandwidth of the social network provider up to 90%.
If the social network provider decides to appoint a representative at any stage, only 25% of the administrative will be collected and the other restrictions will be removed.