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The Liabilities of the Social Network Providers Have Been Detailed

The Liabilities of the Social Network Providers Have Been Detailed

Tolga Poyraz 2 N 2

Obligations imposed on social network providers with the amendments made in the Law No.5651 on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications (“Law”), which is also known as the “Social Media Law” and is very popular in the public opinion, entered into force on1 October 2020

The decision of the Information Technologies and Communication Authority (“ITCA”) regarding the determination of the obligations imposed on social network providers and the procedures and principles for the implementation of these obligations, dated 29 September 2020 and numbered 2020/DK-İD/274 (“The Decision”), entered into force after being published in the Official Gazette dated 2 October 2020.

By the Decision, the obligations of the social network providers including but not limited to appointment of a representation in Turkey, representation’s duties and powers, responding to requests, and sanctions, have been detailed.

1. Which Social Network Providers are Covered within the Regulations?

The regulations cover the domestic or foreign social network providers of which daily access to be sourced from Turkey is more than one million. Popular social media companies such as Facebook, Twitter, and Instagram are to be covered within the regulations.

The platforms where content for social interaction is offered as a secondary and ancillary service, or that that only include content for social interaction in a certain part of the publication on the internet such as personal websites, electronic commerce sites and news sites shall be excluded from the regulations.

2. Who shall be Appointed as Representative?

The foreign-sourced social network providers shall appoint at least one authorized person as a representative in Turkey. Representative or representatives appointed may be natural or legal persons.

In case of a legal person to be appointed as a representative, that legal entity shall have been established in Turkey and shall have a legal personality under the Turkish law. In case of a real person representative, he shall be a Turkish citizen.

Address for notification in Turkey, e-mail address and the registered e-mail address, if available, of representative appointed by a social networking provider, and amendments to this information shall be directly accessed from and be easily seen on social networking providers’ web sites.

Social network providers are also obliged to inform ITCA of the identity, title and contact information of the representative or representatives. Changes to this information should be reported to ITCA within 24 hours at the latest.

The appointment period has expired as of October 1, 2020 and the sanctions detailed below may be applied by ITCA. Even if the representative is appointed later, the subject of the sanctions will be the relevant social network provider.

3. What are the Duties of Representatives?

Pursuant to the Decision, the duties of representatives appointed by social network providers are as follows.

  • Performing notifications, demands and requests sent by ITCA, the Access Providers Association, judicial or administrative authorities,
  • Responding to applications made within the Law by individiuals, in 48 hours at the latest,
  • Performing reporting obligations,
  • Performing other obligations within the Law.

4. How shall Individuals’ Applications to be Responded to?

Social network providers are obliged to respond to the applications by individuals for the content of the broadcasts made on the internet within 48 hours positively or negatively, provided that the reason shall be stated if negatively.

Social network providers shall ensure that the applications to be made by individuals can be easily received by making Turkish language option available. Applications made in Turkish shall be responded to in Turkish.

5. What does the Reporting Obligation Cover?

Social network providers shall notify ITCA at six-month intervals of the reports covering statistical and categorical information regarding the implementation of the decision to remove the content and/or block access notified to them, and the applications by individuals, in Turkish.

The reports prepared will be cleared of personal data and also published on the social network provider’s own website.

6. Where shall the Data of the Users in Turkey shall be Hosted?

Social network providers shall take necessary measures to host the data of the users in Turkey is hosting the direction in Turkey. In taking these measures to host data in Turkey; basic user data and data regarding the matters stated by ITCA shall be prioritized.

ITCA shall be informed regarding the measures taken for the data to be hosted in Turkey, covering the matters stated by ITCA, in each reporting period.

Neither the Decision nor the Law has a detailed regulation on the measures which should be taken for the data of the users in Turkey to be hosted in Turkey. We believe that these measures will be declared by ITCA later on.

7. What are the sanctions imposed in case of non-compliance to the obligations by social network providers?

Within the Decision, several sanctions that will be imposed in case of non-compliance to the obligations by social network providers, are regulated.

7.1 Sanctions regarding appointment of a representative

  • Social network provider who does not appoint a representative shall be notified by ITCA. An administrative fine of 10 million Turkish Lira shall be imposed on social network provider who does not perform his obligations on appointment of a representative in 30 days following the notification.
  • A second administrative fine of 30 million Turkish Lira shall be imposed on social network provider who does not perform his obligations on appointment of a representative in 30 days following the notification of the first administrative fine.
  • If the obligations on appointment of a representative are not performed in 30 days following the notification of the second administrative fine, the tax payer legal or real persons who are resident in Turkey shall be banned to place new advertisements on the relevant social network providers with a decision published in the Official Gazette. Within this ban, an agreement shall not be signed with the relevant social network provider and money shall not be wired to the relevant social network provider.
  • If a representative is still not be appointed in 3 months following the decision on the advertisement ban, then the President of ITCA is entitled to apply to the judicature in order to limit the band width of the relevant social network provider at the rate of 50%. If a representative is not appointed in 30 days following the verdict of the judicature, the President of ITCA is entitled to apply to the judicature in order to limit the band width of the relevant social network provider at the rate of 90%. Judge is entitled to determine the ratio of limit on the band width based on the quality of the service, provided that it is between 50% and 90%.

The verdicts on the band with by the judicature could be objected against within the laws.

If a representative is appointed by social network provider while imposing administrative sanctions, ¼ of the administrative fines are collected, the advertisement ban is lifted, and the verdicts of the judicature ipso facto becomes null and void. The Access Providers Association will be notified of access restrictions by ITCA.

7.2 An administrative fine of 5 million Turkish Lira shall be imposed on the social network providers who do not duly respond to individuals’ applications.

7.3 An administrative fine of 10 million Turkish Lira shall be imposed on the social network providers who fail their reporting obligations.

If the violations required and administrative fine are repeated in one year, the fines shall be imposed by being increased one time for each repetition.

The sanctions in question do not remove the liability of the social network providers for compensation if the content notified to the social network provider with the decision of a judge or court, a is not removed or access to the content is not blocked within 24 hours despite the notification. This legal responsibility also covers domestic or foreign social network providers who have less than one million access sourced from Turkey.

Tolga Poyraz N

Tolga Poyraz

Associate, LLM

tolga.poyraz@kurtandpartners.com

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