By providing a global network for users to express their
opinions and upload their content, social media platforms have
become one of the most significant sources of information in the
world. As of July 2020, approximately 3.6 billion people
use social media, with users spending 2 hours and 22 minutes of
their day on average on different social media platforms.

With a young population and sustained efforts to increase
internet penetration in the country, the population in Turkey has
followed this trend of social media use. There are 54 million
Turkish people using social media, with 2.2 million of these users
having signed up to networks just between April 2019 and January
2020. That means 64% of the Turkish population are
actively using social media platforms, sharing content, reaching
information, and most importantly sharing their data with the
social media platforms.

The data generated by users on social media platforms has become
an invaluable source of information for parties ranging from
companies to political parties. Analysing segments of user data and
conducting big data analysis has allowed these entities to carry
out increasingly effective targeted communication and marketing
campaigns. Consequently, as data has become essential, concerned
states have increasingly enacted measures that ensure adequate
protection and safeguards. Some states have also become inclined
towards enacting more protectionist measures for data localization
that ensure data obtained from their citizens remains within the
country of origin.

The increased adoption and use of social media has also provided
a platform for increased criminal offences committed on the
Internet. Such offences range from traditional crimes that can be
committed online to new forms of violation of personal rights and
the right to privacy that can be committed using online tools such
as cyberbullying.

This has led states to regulate the obligations and liability of
social media platforms more strictly. Germany’s NetzDG, enacted at the beginning of
2018, regulates the obligations of social media platforms while in
England there is an ongoing discussion about extending the
authorization of OFCOM, the media supervision institution. France,
on the other hand, introduced regulations for preventing hate
speech on social media.

A similar regulation regarding social media platforms had been
on the political agenda of Turkey during recent years. Following consultation through the relevant
commissions, on 29.07.2020, the Amendment on the Law on the
Regulation of Publications on The Internet and Suppression of
Crimes Committed By Means of Such Publications
(“Amendment”), also known as “The
Social Media Law” was passed by the parliament and came into
effect upon publication in the Turkish Official Gazette.

The Amendment includes various changes regarding the obligations
of social media platforms, rights of application and means of
recourse for users, data storage, and content removal. The most
significant changes introduced with the Amendment are (i) content
removal and (ii) additional obligations imposed on the social media
platforms.

Content Removal:

According to Articles 8 and 9 of the Law on the Regulation of
Publications on The Internet and Suppression of Crimes Committed By
Means of Such Publications numbered 5651 (“Law numbered
5651”), if a piece of content constitutes a crime as set out
in Article 8 and/or violates someone’s personal rights, the
court can restrict access to that content. However, as a result of
these restriction decisions, access to an entire website on which
illegal content is published can become restricted instead of
simply restricting access to the offending content. Therefore, this
raises a question as to whether the right to freedom of expression
is violated.

Within the scope of this discussion, the Amendment introduced
the concept of “content removal” in addition to the
previously existing system of access restriction.

As per the Amendment, instead of only ruling to restrict access
to content, courts may rule to remove specific illegal content from
the website or a social media platform in the situations set forth
by Article 8 and Article 9 of the Law numbered
5651. The preamble of the Amendment states that such
methods of content removal will allow the courts to prevent the
circulation of illegal content without unnecessarily restricting
freedom of expression by blocking access to an entire website.

However, the Amendment does not regulate the conditions for the
courts to grant a content removal decision meaning the court has
the discretion to decide on an access restriction or content
removal. Consequently, the conditions of content removal will be
determined by the court decisions and jurisprudence of the Court of
Appeals as the content removal practice improves.

Obligations of Social Media Platforms:

The Amendment defines social network providers as “the
persons who provide a platform for its users to create, view and
share written, visual or audio content or location on the internet
for social interaction” and introduces a number of new
obligations for social network providers.

The most significant obligation imposed on social network
providers is to appoint a local representative. According to the
Amendment, social network providers whose daily traffic in Turkey
is over a million will be obliged to appoint a representative to
respond to user complaints regarding violation of privacy and
violation of personal rights. The representative will also notify
the social network providers regarding the notifications and
demands of the official authorities in Turkey and ensure these
demands and submissions are implemented. Social network providers
who do not appoint a representative will be subjected to sanctions
including administrative fines up to TRY 30 Million, advertisement
bans and a decrease in their bandwidth.

The other obligations of social media providers whose daily
access is over a million are as below:

• Responding to the direct complaints of the users regarding the
  violation of privacy and violation of the personal rights within 48
  hours. The social network providers who do not comply with above
  will be subject to an administrative fine of TRY 5.000.000.




• Reporting the data regarding user complaints and court
  decisions on access restriction and/or content removal and
  publishing the anonymized data on their websites. The first
  reporting deadline is June 2021. Social network providers who do
  not comply with the above will be subject to an administrative fine
  of TRY 10.000.000.




• Providing sufficient measures to keep user data in Turkey. The
  provision may eventually be interpreted as an obligation on social
  media providers to relocate their servers containing data of
  Turkish users in Turkey. The provision shows that in line with
  increased awareness on the importance of data collection, further
  regulations on data collection in Turkey may be forthcoming.

The Amendment also holds social network providers liable for
damages caused by illegal content published on their platforms,
provided that the illegality of the content is ratified by a court
decision. This provision will lead social network providers to
remove illegal content from their platforms without having to need
a court decision ordering an access restriction or the removal of
content. With this provision, persons whose rights are violated by
content can apply to the social media platform and file a lawsuit
claiming compensation for their damages along with the person who
published the illegal content. As the compensation can be collected
from the social media platform, the social media platforms can
apply for recourse against the publisher of the content regarding
the compensation.

With the Amendment, the notification process of administrative
fines imposed as per Law numbered 5651 has also changed. In case
the respondent of the administrative fines is not resident in
Turkey, the notification may be made through e-mail or another way.
The addressee will be deemed as duly notified and the appeal period
against the administrative fines will start as of the date of
notification.

The Amendment also regulates the right to be forgotten and
allows persons whose personal rights have been violated by content
to request to the court that his/her name not be associated with
that content by search engines.

Conclusion:

The Amendment sparked controversy around freedom of expression
in Turkey and there has been criticism that it will give the state
wide-reaching authority to censor content on social media. The
effects of the Amendment on freedom of expression will be seen in
time with the practices of the courts and relevant public
institutions.

On the other hand, the Amendment may affect Turkish people’s
access to social media platforms since the sanctions being imposed,
including large administrative fines and decreases in bandwidth in
cases of non-compliance, may cause social media platforms to cease
or limit their activities in Turkey.

Increasing social media use made Turkey an attractive market for
social media platforms. Their reaction and eagerness to comply with
government regulations will show whether Turkey remains a good
market for social media platforms and data collection.

Originally published 8/24/2020.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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