Law On Amendment To The Law Regarding Regulation Of Broadcasting In The Internet And Fighting Against Crimes Committed Through Internet Broadcasting

I. INTRODUCTION

The Legislative Proposal on Amendment to The Law Regarding Regulation of Broadcasting In the Internet and Fighting Against Crimes Committed Through Internet Broadcasting (“The Legislative Proposal”) submitted to the Turkish Grand National Assembly on 21.07.2020, was published in the Official Gazette on 31.07.2020 and entered into force. With the Law on Amendment to The Law Regarding Regulation of Broadcasting In the Internet and Fighting Against Crimes Committed Through Internet Broadcasting (“The Law”);

  • The concept “social network providers” has been introduced,
  • The inscription “port information” is added to the definition of traffic information,
  • The notification method of administrative fines imposed on the content, hosting or access provider that carries out its activities abroad is determined,
  • The amount of fines to be imposed to the hosting providers those who do not make hosting notification or do not fulfill their legal obligations is increased,
  • In violation of personal rights where it is possible to remove the certain part of the content that constitutes crime, the decision to remove the content instead of the decision to block access can be made,
  • It is stipulated that the foreign-based social network providers whose networks are accessed by more than one million visitors daily from Turkey, are obliged to assign at least one person in Turkey as authorized representative. The penalties to be applied to social network providers who fail to fulfill this obligation are determined,
  • The obligations of responding to applications within 48 hours, preparing and submitting reports containing statistical and categorical information in Turkish every six months and keeping the data of Turkish users in Turkey, are imposed for the social network providers,

As a result of the developments in technology around the world, the social impact of social media has increased enormously. Essentially, it is considered that The Law has entered into force in consequence of the effective use of the fundamental rights and freedoms of receiving and giving information by social movements and individuals, it was enacted as a result of the steps taken by countries to prevent and monitor the content.

In our Article hereby, the amendments made on Law No. 5651 on Regulating Broadcasting in The Internet and Fighting Against Crimes Committed Through Internet Broadcasting (“The Law No. 5651”) by The Law are examined.

II. ANALYSIS OF THE ARTICLES OF THE LAW

1- Definition of “Social Network Provider”

With the 1st Article of The Law, the definition of “Social Network Provider” has been made. According to this definition, real or legal persons who allow users to create, view or share contents, such as text, image, sound, voice, location, for social interaction on the internet are defined as “Social Network Provider”.

2- “Port Information” Inscription

With the 1st Article of The Law, the inscription “port information” has been added to the definition of “Traffic Information” which was defined in The Law No. 5651. The traffic information expresses, the IP address of the parties, port information, the beginning and ending time of the service provided, the type of service used, the type of the service transferred, the amount of data transferred and (if any) the subscriber identity information.

3- The Notification Method of Administrative Fines Imposed to The Content, Hosting or Access Provider That Carries Out Its Activities Abroad

With the Law, an addition has been made to the Article 3 titled “Information Obligation” of The Law No. 5651. It has been regulated that if the addressee is abroad, administrative fines can be notified directly by the Information Technologies and Communication Authority via e-mail or other means of communication over the information obtained from the communication tools on the website, domain name, IP address and similar sources. This notification shall be in the effect of the notification made in accordance with the Notification Law No. 7201 and the notification shall be deemed to made at the end of the fifth day following the date of notification.

4- Increasing the Administrative Fines Imposed for Failure to Fulfill the Hosting Provider’s Obligations Regulated by The Law No. 5651

In Article 5 of The Law No. 5651 titled “Location provider’s obligations”, hosting providers are obliged to take the content off the broadcast when they are informed about the illegal content, to keep the traffic information regarding the hosting provided, and to ensure the accuracy, integrity and confidentiality of these information. In order to ensure deterrence, the administrative fines to be imposed for hosting providers who do not fulfill these obligations, have been increased by The Law. Administrative fines for the hosting providers who do not make hosting notification or not fulfill their obligations which can be imposed from 10,000 TL to 100,000 TL, have been increased as from 100,000 TL to 1,000,000 TL.

5- Taking the Decision to Remove the Content Instead of the Decision to Block Access

By making amendments in Article 8 of the Law No. 5651 titled “Decision on the Blocking of Access and Fulfillment” and Article 9 titled “Removal of Content from Publication and Prevention of Access”, it is regulated that in addition to the decision to block access, a decision to remove the content can be given. In other words, if it is possible to remove only the certain part of the content that constitutes crime, it is enabled to give the decision to remove the content instead of the decision to block access. In this way, it is aimed to protect the non-criminal parts of the content on the website and/or its broadcast.

Pursuant to the regulation, the decision to remove the content and / or block the access sent by the Access Providers Association to the content, hosting and the access providers shall be fulfilled immediately and within 4 hours at the latest, by the content, hosting and access providers.

In accordance with the new regulation, if requested by those whose personal rights are violated due to the content broadcasting via internet, the judge may decide not to associate the name of the applicant with the internet addresses subject to the violation. The decision shall also indicate which search engines will be notified by the Access Providers Association. In this way, it is ensured that the name of the person whose personal rights are violated by search engines and the content subject to the violation are not associated.

6- The Obligation to Assign At Least One Person in Turkey as Authorized Representative for The Foreign-Based Social Network Providers Whose Networks Are Accessed by More Than One Million Visitors Daily from Turkey

Additional Article 4 of The Law No. 5651, added by the Law, has imposed the obligation to assign at least one person as a representative in Turkey by the foreign-based social network providers whose networks are accessed by more than one million visitors daily from Turkey, to fulfill the requirements of the notifications and requests, to respond the applications etc.

The social network provider shall publish on its website the authorized person’s contact information, in a way that can be easily seen and directly accessible. Furthermore, the social network provider is obliged to declare the identity and contact information of authorized person to Information Technologies and Communication Authority. In case the representative is a real person, the representative must be a Turkish citizen.

The Information Technologies and Communication Authority shall notify the social network provider in case the social network provider does not fulfill its obligation to assign and declare its representative.

  • In the event of failure to fulfill the obligation within 30 days from the notification, 10,000,000 TL administrative fine shall be imposed.
  • Again, if the obligation is not fulfilled within 30 days, an administrative fine of 30,000,000 TL may be imposed additionally.
  • In the event of failure to fulfill the obligation upon second fine imposed, the relevant social network provider shall be prohibited to take advertisements from real and legal persons who are resident and taxpayer in Turkey.
  • If the obligation is not fulfilled within 3 months from the receiving of the notification of the advertising ban decision, the internet traffic bandwidth of the social network provider will be reduced in the ratio of 50%.
  • If the obligation is not fulfilled within 30 days from the implementation of the decision, the internet traffic bandwidth of the social network provider will be reduced to 50%. Here, the rate can be determined by the judge up to 90% and not less than 50%.

In addition, with the Law, social network providers have been given 48 hours to respond to the applications of persons that require “removing the content from broadcast and blocking access” and “blocking access to the content due to the right of privacy”.  Also, the social network provider is obliged to prepare and submit a report prepared in Turkish every 6 months and to take necessary measures to keep the data of its users in Turkey.

In the event of the content determined as illegal by the court decision is notified to the social network provider, the social network provider who does not remove the content or block access within 24 hours despite the notification shall be liable to compensate the damages incurred. It is not required to invoke content provider’s liability or bring a lawsuit against the content provider, to operate this legal responsibility. Finally, administrative fines to be applied to social network providers who fail to fulfill their obligations have been regulated.

Social network providers are obliged to complete the necessary work within 3 months to respond to the applications  which require “the removal of content from broadcast and blocking of access” and “blocking of access to content due to the privacy of private life” within 48 hours.

Social network providers are also obliged to submit their first reports containing statistical and categorical information regarding these applications to Information Technologies and Communication Authority in June 2021.

7- Effective Date of The Law

The provisions regarding the obligation of “assignment of at least one person in Turkey as authorized representative by the foreign-based social network providers whose networks are accessed by more than one million visitors daily from Turkey” shall enter into force on 01.10.2020. Other provisions shall enter into force on the date of publication.

III. CONCLUSION:

The Law, published in the Official Gazette dated 31.07.2020, draws attention with the changes that made in The Law No. 5651, especially in terms of the restrictions on social media. With these changes, the concept of “Social Network Provider” is introduced; deterrent sanctions are stipulated by imposing obligations on blocking access to social network providers and removal of the content. The Law draws attention with its provisions regarding the foreign-based social network providers whose networks are accessed by more than one million visitors daily from Turkey are being obliged to assign at least one person in Turkey as authorized representative. It is believed that the Law is legislated to reduce the social impact of social media.

Authors

  • Bahçeşehir Üniversitesi – Hukuk Fakültesi (Lisans), 2010 - İstanbul Barosu, Şengün & Partners Avukatlık Ortaklığı’nda Kıdemli Avukat

  • Bahçeşehir Üniversitesi Hukuk Fakültesi, Lisans, İstanbul, Türkiye

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