Lawyer Meryem Kılıç
»In today’s world, technological developments can sometimes provide an environment for the commitment of harmful acts to one another. The most common situation is the publication of a photograph which belongs to someone else, leading to material or moral damage to a natural or legal person. In an attempt to eliminate problems like this and many others the Law No. 5651 on “Regulation of Broadcasts on the Internet and Fight Against Crimes Committed Through These Broadcasts” has come into force.
»As stated in article 1 of the law, the purpose is “to regulate the obligations and responsibilities of content providers, host, access and collective use providers, and to regulate the principles and procedures for combating certain crimes committed on the internet via content, location and access providers”.
»Therefore by this law, the removal of unwanted and illegal content such as photographs, news, videos published on the internet has been made possible. Law No. 5651 is of particular importance as it lays down the legal basis for access prevention to content violating the right of privacy and personal rights.
What are The Conditions for Removal Or Blocking of Content (Videos, Photography, News, Comments Etc.)?
»The conditions in which content can be removed has been listed in articles 8 and 9 of the “Regulation of Broadcasts on the Internet and Fight Against Crimes Committed Through These Broadcasts Law”;
–Removal of content or blocking of access due to violation of personal rights
–Removal of content or blocking of access due to crime,
–Removal of content or blocking of access due to violation of the right of privacy
–Removal of content or blocking of access due to violation of the Law No. 5846 on Intellectual Property,
–Removal of content or blocking of access due to use of the right to be forgotten,
–Blocking of access due to public interest and public order.
»In the cases listed above, people who are victimized due to online broadcasts have the right to request the removal of the content by contacting the content and hosting provider.
From Whom Should The Request to Remove or Block Content be Requested?
The Authority Regarding Content Blocking Due To Crime
»If access is blocked due to a crime, the Judge, Court or Public Prosecutor may decide to remove the content or block access to the content. These crimes are;
–Provocation to suicide,
–Sexual abuse of children,
–Facilitating the use of drugs or stimulants,
–Supply of hazardous materials for health,
–Obscenity,
–Prostitution,
–Offenses of providing a place and opportunity for gambling,
–The crimes in the Law No. 5816 on Crimes Committed Against Atatürk, dated 25/7/1951.
–Offenses included in the Law on Betting and Chance Games in Football and Other Sports Competitions dated 29/4/1959 and numbered 7258.
»If access is blocked due to the commission of a crime, the decision is made by the Criminal Court of Peace during the investigation phase and by the court during the prosecution phase. During the investigation phase, in cases where delay may cause harm, the public prosecutor may decide to block access. The public prosecutor shall submit his decision to the Court within twenty-four hours and the Court shall approve the decision within twenty-four hours at the latest. If the decision is not approved within this period, the measure shall immediately be lifted by the public prosecutor.
The Authority Regarding Content Blocking Due To Personal Rights
»Due to the content of the broadcast on the internet, legal/natural persons and institutions/organizations claiming that their personal rights have been violated may reach out to the content provider and if unreachable, the hosting provider and request that the content be removed from the broadcast. It can also be directly requested from the Criminal Court of Peace that the content be removed and/or blocked. The requests of people claiming that their personal rights have been violated due to the broadcast content must be answered by the content and/or hosting provider within twenty-four hours at the latest.
»Natural/legal persons claiming that their personal rights have been violated, may request the removal or the blocking of the content directly from the Criminal Court of Peace either if the content or hosting provider refuses the request, or directly without contacting the content or hosting provider. The Court decides on the application within twenty-four hours at the latest without making a hearing. An appeal may be filed against this decision in accordance with the provisions of the Criminal Procedure Code numbered 5271. If the content subject to the blocking of access is removed from the broadcast, the decision of the Court is automatically voided.
»For personal right violations caused online, if the website has a known address in Turkey, the Criminal Court of Peace located in that address is authorized to remove or block content. The Criminal Court of Peace located in the victim’s place of residence is also authorized to decide whether the content is removed or blocked (Article 12/5 of the Code of Criminal Procedure No. 5271).
»The Court may block content mainly by the method of blocking access to the specific content (in the form of URLs, etc.) in relation to the publication, part, section where the violation of the personality right occurred. Unless it is mandatory, it cannot be decided to block the entire broadcast on the website. However, if the Court believes that the violation cannot be prevented by blocking access to the content by specifying the URL address, he may also decide to block access to the entire publication on the website.
»The decisions of the Court to remove the content and /or block access is sent directly to the Access Providers Association. In case of the request of those whose personal rights are violated due to the content of the broadcast on the internet, the Court may decide not to associate the name of the applicant with the internet addresses subject to the decision. The decision shall indicate which search engines will be notified by the Union.
»After the Union notifies the hosting or content providers, these providers must immediately or at the latest, in 4 hours take down the content. If said content has spread to other internet addresses, the standing decision is applicable to these addresses as well.
»Those responsible for content, hosting and access provision who do not fulfill the decision of the Criminal Court of Peace in accordance with the conditions mentioned above and in time are punished with a judicial fine from five hundred to three thousand days.
The Authority Regarding Content Blocking Due To Violation Of The Right Of Privacy
»Persons who claim that their privacy is violated due to the content of broadcasting on the Internet may apply directly to the Information and Communication Technologies Authority themselves or through their lawyers and request the implementation of the measure to prevent access to the content. In this request; the full address (URL) of the publication that caused the right to privacy infringement, the explanation on what aspects of the right were violated and information that will prove the identity information must be included. If this information is missing, the request will not be processed.
»The President of the Information Technologies and Communication Authority immediately notifies the Access Providers Association of this request and the access providers fulfill this measure request immediately, within four hours at the latest. Blocking of access is implemented by blocking access to content (in the form of a URL) related to the publication, part, episode, image, video that violates the right to privacy.
»Those claiming their right to privacy was violated must present this claim to the Criminal Court of Peace within twenty-four hours of their initial request to block access to the content. The Court must then decide on the blocking of content no later than fourty-eight hours and send it directly to the Information Technologies and Communication Authority, otherwise the blocking of access will be lifted automatically. The President may appeal against this decision made by the Court in accordance with the provisions of Law No. 5271.
»If the content subject to the blocking of access is removed from the broadcast, the decision of the Court automatically becomes invalid.
»In cases where delay is harmful due to the violation of the right to privacy, the blocking of access is made by the Authority directly upon the order of the President. The decision to block access given by the President is submitted to the approval of the Criminal Court of Peace within twenty-four hours. The Court will then announce his decision within forty-eight hours.
The Authority Regarding Content Blocking Due To Violation Of The Intellectual Property Law
»In case of violation of copyrights over the internet, the additional article 4 regulation of the Law No. 5846 on Intellectual Property finds application. According to this; the natural or legal person whose rights are violated first applies to the information content provider and requests that the violation be stopped within three days. If the violation continues, this time, upon the application made to the public prosecutor, within three days, the service provider is asked to stop providing service provided to the information content provider that continues with the violation.
»The Law on Intellectual Property No. 5846 accepted only the removal of the content, not the blocking of access due to copyright infringement. However, if the service provider stops the service upon the decision of the prosecutor, the continuation of the violation of rights will be prevented.
The Authority Regarding Content Blocking For Public Interest And Order
»Protection of the presidency or national security and public order, prevention of crime or at the request of the ministries concerned with the protection of general health, the Information Technologies and Communication Department may decide to remove the content and / or block access with regard to the publication on the internet. The decision is immediately communicated to the access providers and relevant content and hosting providers by the President. The decision to remove content and / or block access is fulfilled immediately and within four hours from the moment of notification of the decision at the latest. In this context, content and hosting providers related to access providers who fail to comply with the decision to remove the given content and / or block access are fined by the President from fifty thousand Turkish Liras to five hundred thousand Turkish Liras.
»The decision to remove the content and / or block access, given by the President at the request of the Presidency or the relevant Ministries, is submitted by the President to the approval of the Criminal Court of Peace within twenty-four hours. The Court announces his decision within forty-eight hours; otherwise, the decision is automatically lifted.