A recent law proposal which provides significant changes to the
Law on Regulation of Broadcasts via Internet and Prevention of
Crimes Committed through Such Broadcasts (“Law No.
5651“) was published on the Grand National
Assembly of Turkey’s
(“TBMM“) website on July 21,
2020 and on the Official Gazette on July 31, 2020
(“Amendment Law“). The
Amendment Law primarily introduces obligations on social network
providers with over 1 million daily accesses from Turkey.

1. 
                  
   Obligations Introduced by the Amendment Law

1.Social Network Provider Definition

The Amendment Law defines social network provider as real
persons or legal entities that enable users to create, view or
share content such as text, images, sound, location for social
interaction purposes on the internet medium.

2.Obligation to Appoint a Representative

The Amendment Law obliges foreign based social network provider
(“SNP“) which secures more than
one million daily access from Turkey to assign at least one person
as its representative in Turkey, who will be capable of meeting the
requests, notifications or notices that will be sent by the
Information Communications and Technologies Authority
(“ICTA“), Access Providers
Union (“APU“), and judicial or
administrative authorities, and responding to the applications to
be made by individuals within the scope of the Law No 5651, and
fulfilling other duties therein. In case the representative is a
real person, this person must be a Turkish citizen.

SNPs must include contact information of the representative in
an easily visible and directly accessible manner on their website.
SNPs are also obliged to report this person’s identity and
contact information to the ICTA.

The Amendment Law suggests a 5-tiered sanction mechanism that
would apply respectively in case the SNP continues to violate this
obligation within the given periods: (i) administrative monetary
fine of 10 (ten) million Turkish Liras, (ii) additional
administrative monetary fine of 30 (thirty) million Turkish Liras
(in case the obligation is not fulfilled within 30 days),
(iii) prohibition for the resident tax payers to place
advertisements on the social network provider (in case the
obligation is not fulfilled within 30 days as of the second
monetary fine), (iv) bandwidth throttling up to 50% (in
case the obligation is not fulfilled within 3 months as of the
advertisement ban decision) and (v) bandwidth throttling up to
90% (in case the obligation is not fulfilled within 30 days as
of the first bandwidth throttling).

3. 48 Hours to Respond to Individual Requests

Pursuant to the Amendment Law, SNPs which secure more than one
million daily access from Turkey are obliged to provide a positive
or negative response to the applications made with regard to the
content that falls under the scope of Article 9 and 9/A of Law No.
5651 within 48 (forty eight) hours starting from the submission of
the applications. In addition, negative responses should be given
with the reasoning.

Administrative fine of 5 (five) million Turkish Liras might be
imposed on SNPs which fail to comply with this obligation.

4. 24 Hours to Enforce Court Orders

The Amendment Law provides that SNPs will be liable for all of
the damages arising from failure to remove or block access to
content which is deemed unlawful with a judge or court order,
within twenty four (24) hours.

5. Reporting Obligation

The Amendment Law requires domestic or foreign based SNPs which
secure more than one million daily access from Turkey notify ICTA
semi-annually on the reports in Turkish language including
statistical and categorical information (i) regarding
implementation of removal of content and/or access ban decisions
and (ii) regarding the applications that fall within the scope of
the applications based on Article 9 and Article 9/A of the Law No.
5651.

The Amendment Law also requires publication of the applications
based on Article 9 and Article 9/A of the Law No. 5651 on SNP’s
own website by redacting the personal data in these reports.

Administrative fine of 10 (ten) million Turkish Liras might be
imposed on SNPs which fail to comply with this obligation.

6. Data Localization

The Amendment Law introduces data localization requirements and
obliges domestic or foreign based SNPs which secure more than one
million daily access from Turkey to take the necessary measures to
keep the personal data of the users in Turkey, in Turkey.

7. RTBF Reference

The Amendment Law also allows judges to decide on not
associating the applicant’s (whose personal rights are violated
due to the content broadcasted on the internet) name with the
websites subject to the decision. Per the Amendment Law, the
decision will also indicate which search engines will be notified
by the APU.

8. Notification Procedure

The Amendment Law enables notification of the administrative
monetary fine decisions through electronic means to the foreign
counterparts and indicates that this notice (i) has the capacity of
the notification regulated under the Notification Law numbered 7201
and (ii) will be deemed to have been made at the end of the fifth
day following the notification date.

9. Provisional Article

The Amendment Law provides a transition period with regard to
the obligation to respond to individual requests within 48 hours
and states that SNPs shall complete the necessary work to fulfill
their obligations within 3 (three) months.

The Amendment Law entered into force as of July 31, 2020 except
for the provisions related to SNPs”. Provisions related to
SNPs (i.e. Articles 1, 6 and 7 of the Amendment Law) will
become effective on October 1, 2020.

Once the provisions as to “social network providers”
become effective (i.e. October 1, 2020), there will be
another transition period of 3 (three) months for complying with
the obligation to respond to individual requests within 48 hours
(i.e. January 1, 2021). As for the reporting obligation,
the first report will be submitted to the ICTA in June 2021.

This article was first published in Legal Insights Quarterly
by ELIG Gürkaynak Attorneys-at-Law in September 2020. A link
to the full Legal Insight Quarterly may be found here

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.