A number of fundamental changes were made in the Law No. 5651 on “Regulating Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts (Legislation)”, came into force on 22/05/2007, with the Law No. 7352 on “Regulating Publications on the Internet and Combating Crimes Committed Through These Publications” (Amendment), which was published in the Official Gazette on July 31, 2020, which is called the Social Media Law in the press.
I. Introduction
A number of fundamental changes were made in the Law No. 5651 on “Regulating Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts (Legislation)”, came into force on 22/05/2007, with the Law No. 7352 on “Regulating Publications on the Internet and Combating Crimes Committed Through These Publications” (Amendment), which was published in the Official Gazette on July 31, 2020, which is called the Social Media Law in the press.
II. Reasons
Aforementioned legislation, which was accepted by the General Assembly of the Turkish Grand National Assembly, aims to regulate the relationship between users and social network providers from abroad such as Facebook, Twitter, Instagram, YouTube, TikTok, LinkedIn, Periscope, whose daily access is more than 1 million. All kinds of issues, big or small, related to these channels, which have a lot of users all over the world, attracts much attention. For example, the current incident after the decision to change the confidentiality agreement of the WhatsApp communication application can be given. Yet, this Amendment became overly topical issue; it had critics as well as complementors. There are also those who think that freedom of expression will be restricted, and censorship will be applied to social media channels, as well as those who thinks that reporting to public institutions will be easier when internet users have a complaint. Overall, this Amendment targets the triple link between social network providers – user – public institutions.
III. Changes
The changes included in the Law with this Amendment are explained below;
- First of all, the scope was expanded by adding the phrase “Social Network Provider” in addition to the “hosting service provider”, “content provider” and “access provider” concepts already defined in Article 2 of the Regulation. The social network provider is defined as follows: Real or legal persons that enable users to create, view or share content such as text, images, sound, location on the internet for social interaction.
The first question that arises with this definition is whether the widely used smartphone application WhatsApp is a social network provider. The general view here it remains far from the definition of a social network provider because the WhatsApp application can be called a technological application that provides communication rather than a social interaction channel.
In addition, the Additional Clause 4 introduced by the Amendment is of great importance because it imposes wide-ranging obligations on social network providers.
- Additional Clause 4 (1): Social Network Provider from abroad which daily reach is more than a million from Turkey; determines at least one person as representative in Turkey to ensure the fulfilments of notification and request by Institutions, Associations, Judicial or Administrative Authorities, and responding to applications made by individuals under this Law and the fulfilment of other obligations under this Law. It places contact information of representative on its website in a way that can be easily seen and directly accessible. The social network provider is obliged to inform the Institution of the identity and contact information of this person. If the representative is a real person, he / she must be a Turkish citizen.
As it can be seen from this article, Social Network Provider from abroad which daily reach is more than a million from Turkey should determine at least one person as representative in Turkey. This determined person should be notified to the Information and Communication Technologies Authority (Institution). If the representative is determined as a real person, he/she must also be a Turkish citizen. In addition, the contact information of the representative is announced on the website of the social network provider in a way that can be easily seen and directly accessible.
With assigning a representative, it will be intended that addressee of the social network provider will be clearly determined in notifications and request of the judicial and administrative authorities to Social Network Provider from abroad which daily reach is more than a million from Turkey. As mentioned above, there is a clear link between the government and the social network provider.
As stated in the continuation of Add. Clause 4, a sanction has been gradually introduced for social network providers to fulfil the obligation to identify and report representatives. The Authority notifies those who do not fulfil this obligation. If this obligation is not fulfilled within thirty days after this notification, the social network provider will be fined ten million Turkish liras by the Chief of Institution. In the event that this obligation is not fulfilled within thirty days after the notification of the administrative fine, an administrative fine of thirty million Turkish lira will be imposed.
The second time administrative fines after notification of the punishment that Social Network provider relating to resident taxpayers in Turkey is prohibited to new advertising, does not establish new agreements in this context and the related money transfers by the Chief of Institution in case of failure to fulfil this obligation within thirty days. In the event that this obligation is not fulfilled within three months from the date of the decision to prohibit advertising, the Chief of Institution may apply to the Criminal Judge of Peace to reduce the internet traffic bandwidth of the social network provider by fifty percent. In the event that the mentioned obligation is not fulfilled within thirty days from the implementation of the judge’s decision regarding the acceptance of the application, the Chief of Institution may apply to the Criminal Judge of Peace to reduce the internet traffic bandwidth of the social network provider up to ninety percent. The judge may determine a lower rate, taking into account the nature of the service provided, it is not less than fifty percent, in his decision upon the second application.
The Chief of Institution may appeal against these decisions in accordance with the provisions of Law No. 5271.
The decisions made by the judge are sent to the Authority to be notified to the access providers. The requirements of the decisions are fulfilled immediately and within four hours at the latest by the access providers. In the event that the obligation to determine and report a representative is fulfilled; one fourth of the administrative fines imposed is collected, the advertising ban is lifted, and the decisions of the judges are automatically voided. The Authority makes a notification to the access providers in order to terminate the intervention to the internet traffic bandwidth.
Domestic or foreign Social Network Provider which daily reach is more than a million from Turkey is obliged to give a positive or negative answer within 48 hours at the latest from the application date for the applications through the contents covered by the removal of the publication’s content and blocking access titled Clause 9 and blocking access to content because of privacy titled Clause 9/A. Negative answers are given with reasons.
Domestic or foreign Social Network Provider which daily reach is more than a million from Turkey, reports the Turkish prepared reports included statistical and categorical information relating to application in scope of Clause 9 and 9/A and enforcement of the decision to remove the notified content and / or block access to the Institution every six months. The report regarding these applications is also published on the website of the social network provider, purified from personal data.
Domestic or foreign Social Network Provider which daily reach is more than a million from Turkey, takes the necessary precautions toward hosting user’s data in Turkey.
The Chief of Institution imposes an administrative fine of five million Turkish lira to the social network provider that fails to fulfil the obligation to respond within 48 hours, and ten million Turkish Lira to the social network provider that fails to fulfil the reporting obligation.
In the event that the content of which is determined to be unlawful by a judge or court decision is notified to the social network provider, despite the notification is made, the social network provider who does not remove the content or block access within twenty-four hours is responsible for the compensation of the resulting damages. For the exercise of this legal liability, it is not necessary to go to the responsibility of the content provider or to sue the content provider.
With the Amendment that took effect on October 1, YouTube, Google, TikTok, Dailymotion, VKontakte and most recently LinkedIn, have assigned representatives so far. For companies such as Twitter, Facebook, and Instagram, which refused to open a representative office in Turkey, was given a total of 40 million fine. Companies that refused to open a representative office were given a deadline until January 19, 2021, to fulfil their obligations and the last day Facebook & Instagram have assigned representatives in Turkey. The advertising ban will begin for social network providers who cannot assign representatives until this time. Currently, companies such as Periscope and Pinterest have not opened a representative office. The new social media platform, Clubhouse should be in a position to appoint a representative as they are more likely reach more than 1 million users within a short time in Turkey.
IV. Conclusion
With the new changes clearly stated above, there are very high risks with the potential to affect the digital communication activities of digital agencies, brands and SMEs as of 2021. In particular, the ban on advertising will cause to limited advertising for many brands and real persons on channels such as Facebook, Instagram, Twitter and Pinterest, and if this happens, many digital media planners in the sector will face a problem such as the decrease in business or the downsizing of the departments they are in.
In the sanction related to bandwidth reduction, it may occur that the number of active users in the social media will decrease at the specified rate, and even the problem of accessing these networks across the country. In the event of such a situation, a serious employment problem may start to arise for social media employees and digital agencies. In addition, it may cause the termination of social media management agreements between brands and agencies where the change of law is shown as force majeure. Likewise, SMEs that reach the market beyond normal conditions can see a decrease in their earnings through e-commerce.
This Amendment pose a great risk at a time when the major damage of Covid-19 on the economy which will take a long time to recover. As a remedy, using local social media channels, increasing communication via SMS or e-mail can be solutions to this problem; alternatively, digital content providers and companies who want to advertise in social media platforms freely are considering of moving their headquarters to the UK or EU countries.
By Ali Guden, Founding Partner, Guden