(Aug. 6, 2020) On July 29, 2020, Turkey’s parliament passed a bill amending Law No. 5651 on Regulating Internet Publications and Combating Crimes Committed by Means of Such Publications. The new law requires that foreign social network service providers whose services are accessed from Turkey more than 1 million times a day appoint a permanent representative in Turkey and take measures to store the data of users located in Turkey within the territory of the country. The amendments bring a five-tiered sanctions regime for noncompliance with the new rules. In addition, the amendments introduce a version of the “right to be forgotten”—a concept that did not previously exist in Turkish law—whereby a court can order that the name of a person not be associated with a website in search engine services if it is found that the related online content violates personality rights—that is, rights under Turkish civil law protecting one’s life, bodily integrity, health, name, image, voice, and private life.
Requirement to Appoint Representative and Report Content Blocking and Removal
Law No. 5651 establishes the legal procedure through which content published on the internet can be blocked by an administrative decision or court order, and through which internet service providers may be required to remove or render inaccessible certain content that is published on their websites or platforms. The law enables the Information and Communication Technologies Authority (ICTA) to order internet service providers to remove or block online content in cases related to a catalog of crimes (art. 8) or threats to public order, security, or other pressing and immediate dangers (art. 8/A). Moreover, the law compels the removal or blocking of content by courts in cases concerning the violation of personality rights (art. 9) and of privacy (art. 9/A).
The amending law provides Law No. 5651 with a new supplementary article 4, requiring that foreign-based social network providers whose platforms are accessed from within Turkey more than 1 million times a day (qualified SNPs), which would include popular SNPs such as Facebook, Twitter, or TikTok, appoint a real or legal person representative that is authorized to receive service of administrative and court orders and respond to other notifications and requests made by service providers under the law. It also amends Law No. 5651 to define “social network providers” as “real or legal persons providing the means for users to create, view, or share content such as text, video, audio, or location in the internet medium for the purposes of social interaction,” and to require that real persons appointed as representatives have Turkish nationality. (New art. 2(1)(s).)
Furthermore, supplementary article 4(4) requires that qualified SNPs file a report with the ICTA every six months, reporting information regarding compliance with blocking and removal orders and statistical information on personal blocking and removal requests made by private persons under articles 9 and 9/A of the law.
Data Localization Obligation
The new supplementary article 4(5) requires that all qualified SNPs “take the necessary measures to store in Turkey the user data of users located in Turkey” ([verileri] Turkiye’de barindirma yonunde gerekli tedbirleri alir, author’s translation).
Five-Tiered Sanctions Regime
Qualified foreign-based SNPs that do not appoint a representative and notify the ICTA of the appointment are subject to a sanctions regime with five steps, with the severity of each step increasing in the face of continued noncompliance. According to the new supplemental article 4(1), the ICTA is to instruct qualified SNPs that do not have a representative in Turkey to appoint one. SNPs that do not comply within 30 days of the ICTA’s notification will be fined an administrative fine of 10 million Turkish lira (about US$1.2 million). SNPs that do not appoint a representative within 30 days of their first fine will be fined an additional 30 million Turkish lira. If the SNP insists on not complying, the ICTA is to forbid the SNP from providing advertising services to real and legal persons whose tax residences are in Turkey and are thus subject to Turkish income or corporate taxes, as well as bar the conclusion of new advertising contracts and money transfers related to these. If the SNP still refuses to comply and does not appoint a representative within three months of the issuance of the administrative decision forbidding advertising services, the ICTA may request that a court order the reduction of the bandwidth assigned to the SNP’s services by 50%. If the SNP continues not to comply, the ICTA may ask the court to order a 90% reduction in bandwidth. Should the court decide to order a lesser reduction to the bandwidth, this second reduction cannot be less than 50%. On complying at any point of the sanctions regime, only one-fourth of the fines will be payable and the additional sanctions will be lifted.
“Right to Be Forgotten” as Relief
The new law amends article 9(10) of Law No. 5651 to include additional relief that courts can order in cases where a person claiming a violation of personality rights requests that online content be blocked or removed. In such cases, the court can order search engine providers to not associate the names of persons with the internet addresses related to the lawsuit.
Opposition to the New Law
The amending law faced intense criticism in the parliament, with opposition members of parliament (MPs) accusing the government of seeking to silence opposition voices in social media and establish censorship. MP Halil Ozturk, who spoke during the discussions on the bill in the General Assembly on behalf of the Nationalist Action Party (MHP), which supported the bill, characterized the main aim of the bill as combating fake accounts, fake news, and misinformation on social networks, comparing the bill to certain regulations in Germany and France aiming at combating fake news. Opposition MPs rejected these explanations. MP Engin Ozkoc, deputy leader of the parliamentary group of the Republican People’s Party (CHP), which is the largest opposition party in the parliament, announced in a press conference that the CHP would file a constitutional complaint with the Constitutional Court against the bill, and argued that the amendments were a ploy to censure the opposition in social media.
Entry into Force
The amending law was published in the Official Gazette on July 31, 2020. Per article 8 of the amending law, the new supplemental article 4 added to Law No. 5651 will enter into force on October 1, 2020.