By Sümeyye Ucar and Büsra Tilkioğlu
With the Law w.no 7253 published in the Official Gazette on July 31, 2020, various amendments were made to the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of such Publications w. no 5651 (“the Law w. no 5651”). While some provisions regarding these changes entered into force on the date of publication, it was regulated that Article 2/1 (s), Additional Article 4 and Provisional Article 5 will enter into force on October 1, 2020. In accordance with the Additional Article 4/10, which entered into force on October 1, 2020, the Information and Communication Technologies Authority (ICTA) has determined the "Procedures and Principles on Social Network Providers" ("the Decision") with its decision published in the Official Gazette on October 2, 2020.
Several obligations for social network providers have been determined under these regulations. One of these obligations is that foreign social network providers must appoint a representative within the scope of Additional Article 4. The foreign social network providers which have daily access of more than 1.000.000 from Turkey must appoint at least one representative in Turkey. If the representative is a legal entity, it must be established in Turkey and obtain a corporate identity under Turkish legislations and, if the representative is a natural person, he/she must be a Turkish citizen. This regulation has become applicable for social network providers with the entry into force of Additional Article 4 on October 1, 2020.
In this context, on October 1, 2020, platforms that are suitable for social interaction such as Facebook, Twitter, Youtube and TikTok were notified of the obligation to appoint representative by the ICTA, and an administrative fine of TRY 10,000,000 (approx. 996.000 EUR) was applied under the Law w. no 5651 due to the fact that the social network providers failed to fulfill its obligations within 30 days from date of notification. This administrative fine has been applied as the first step of a 5-stage sanction system that will be applied to the social network providers that have not appointed representative under the Law w. no 5651 and, if the social network providers fail to fulfill their obligations, the sanctions will be increased in accordance with the table below.
In practice, there is uncertainty regarding the way to be followed in notifications that will be made to ICTA on the appointment of a representative. It is estimated that this situation will become clear during an application that will be made by the social network provider or in the process after the notification made by the ICTA.
In addition, pursuant to the Decision, detailed regulations have been made regarding the scope of the definition of the social network provider, the reporting obligation, the obligation to appoint a representative, the applications to be made by individuals, and data localization of the users in Turkey. In terms of the scope of the definition of social network provider, the regulations in the Decision contain important issues. Under the Decision; (i) Natural and legal persons that provide content that is suitable for social interaction on only a certain part of the broadcast, and; (ii) Platforms where content that is suitable for social interaction is provided only as a secondary and ancillary service together with the main service (e.g. personal websites, e-commerce websites, new websites), are exempt from the scope.
Also, social network providers with less than 1.000.000 daily access (continuously) from Turkey can apply to the ICTA to be considered “out of the scope” pursuant to the Decision. If the ICTA finds this request suitable as a result of technical evaluation, the social network provider will be notified. However, in case that social network provider’s daily access from Turkey increase, the ICTA will accept the social network provider within the scope and make a notification regarding that.
Although the regulations are as stated, in practice, there is no information on ICTA initiating the evaluation of requests for exemption made by social network providers. Except for the notifications made by BTK regarding the obligation to appoint a representative; uncertainties in practice related to other obligations imposed upon social network providers continue. It is estimated that with Decision of the ICTA and more detailed regulations that may be issued in the future, the implementation process of Law w.no 5651 will become clear and the uncertainties will disappear.
As a result, it is significant that social network providers fulfill these obligations in order not to face any sanctions regulated under the amendments made in the Law w. no 5651 and the Decision.