Lawyer Meryem Kılıç-Lawyer Ayşe Hüma Lofça

»The Information Technologies and Communication Institution determined the obligations of social network providers with it’s 29.09.2020 dated decision. Said decision went into force on 02.10.2020, making the obligations of this decision and the sanctions of breach of great importance.

»This decision covers social network providers with more than one million daily access rates both nationally and internationally. In the implementation of this decision, natural or legal social network providers with specific social interaction based content won’t be accepted as social network providers. Personal websites, e-commerce sites and news sites where social interaction based content is a side service will be outside the scope of these obligations. The obligations within the scope are shown below;

What is The Obligation to Appoint a Representative?

»Foreign network providers are obligated to determine at least one representative in Turkey. Representatives may be natural or legal persons. Natural persons must be residing in Turkey. Legal persons appointed as a representative must have been founded in Turkey and gained legal personality in compliance with Turkish law.

»Social network providers are obligated to notify the Information Technologies and Communication Institution of the representative’s identification, title and contact information. If any change occurs, they must be reported to the Institution immediately, within twenty-four hours at the latest.

»The social network providers must provide the address which can be notified in Turkey and e-mail of the representatives on their website in an easily visible and directly accessible manner. The changes of contact information of the representatives must be published on said website.

What sanctions will be applied if the obligation to appoint a representative is breached?

Administrative Fines

»The Information Technologies and Communications Institution will notify the social network provider who failed to comply with the obligations. If the obligations to determine a representative are not met within thirty days of the notification, the President with issue a ten million Turkish Lira administrative fine. If the obligations are not met for another thirty days, the network provider will be fined thirty million Turkish Liras.

»If the obligations are met, one fourth of the fine will be collected.

Advertisement Bans

»If the obligations are not fulfilled within thirty days of the second fine notification, natural or legal resident taxpayers in Turkey will be prohibited from advertising on their website. According to the advertisement ban, a new agreement cannot be made with this network provider, nor can Money be transferred to this network provider. The advertisement ban will be sent to the Official Newspaper. The Official Newspaper will then publish the ban and will be followed by related public institutions and organizations.

»When obligations regarding representative determination are met, the advertisement ban will be lifted.

Constriction of the Internet Traffic Bandwidth

»Within three months of the advertisement ban decision, if obligations are still unfulfilled, the President will apply to the Criminal Court of Peace for the bandwidth of internet traffic to be constricted by fifty percent.

»In case of failure to fulfill the obligations regarding the appointment of a representative within thirty days after the decision of the Court regarding the acceptance of the application, the President may apply to the Criminal Court of Peace to reduce the internet traffic bandwidth of the social network provider up to ninety percent. In his decision about reducing the internet traffic bandwidth up to ninety percent, the Court may determine a rate on the basis of the nature of the service given, provided that it is not less than fifty percent, The President may appeal against the decisions made by the Court in accordance with the provisions of the Criminal Procedure Law No. 5271, dated 4/12/2004.

»In case of the obligations to appoint a representative are fulfilled; Court decisions are automatically voided. The Authority makes a notification to the access providers in order to terminate the intervention to the internet traffic bandwidth.

What İs the obligation to answer applications?

»The social network provider of domestic or foreign origin is obliged to respond to the applications made by individuals for the contents within the scope of articles 9 and 9 /A of the Law No. 5651 on “Regulation of Broadcasts Made on the Internet and Fighting Against Crimes Committed Through These Publications”.

»The social network provider must ensure that these applications can be easily received by individuals and the application can be made using the Turkish language option.

»The social network provider must respond positively or negatively, provided that the reason is stated, within 48 hours at the latest from the application. Applications made in Turkish must be answered in Turkish.

What Sanctions Will Be Applied if The Obligatıon To Answer Applications Are Unfulfilled?

»Social network providers who do not comply with the obligation to answer applications will be fined five million Turkish Liras by the President.

»The Institution will examine whether or not the social network provider has met it’s obligations upon the complaint of the applicant. The institution will examine applications regarding unfulfilled obligations as a whole during reporting periods.

»In the Institution’s examination, factors such as whether necessary systems for the fulfillment of the obligations are built by the social network providers, whether the social network providers are consistently giving a negative response to applications, whether these negative responses are unjustified will be taken into account.

What is the Obligation of Reporting?

»Social network providers of domestic and foreign origin must present reports in Turkish of six month periods regarding the enforcement of removal and/or blocking of content decisions and statistics and categorized information regarding applications to the Information Technologies and Communication Institution.

»Furthermore, the report prepared by the social network provider must be cleansed from personal data and published on their own website.

What sanctions will be applied if the obligation of reporting is unfulfilled?

»Social network providers who fail to fulfill their reporting obligations will be fined ten million Turkish Liras by the President of the Information Technologies and Communication Institution.

Judicial Review of Administrative Fines Given by The Institution

»The Judicial review of administrative fines given by the Information Technologies and Communication Institution; Law No. 5651 on the Regulation of Broadcasts on the Internet and the Fight Against Crimes Committed Through these Publications Article 8/12 states that “Against administrative fines given by the Institution for misdemeanors defined in this law, legal remedies can be approached in accordance with the Law No. 2577 and dated 6/1/1982 on Administrative Trial Procedure.” Due to this special provision, the review must be done in Administrative Jurisdiction. Against the fines given by the Information Technologies and Communication Institution, as an administrative body, according to Article 32/1 of the Administrative Trial Procedure Law, annulment actions can be pursued in Ankara Administrative Courts. These Ankara courts are the administrative courts located where the administrative authority issuing the administrative action and administrative agreements.