NEW TERM IN INTERNET LAW: SOCIAL NETWORK PROVIDER
Law No. 7253 (“Law”) amending Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications No. 5651 (“Internet Law”) has been published on July 31, 2020 on Official Gazette. Foreign-based network providers’ obligations including designating an agent, has entered into force on October 1, 2020; the additional amendments under Law have entered into force on June 31, 2020.
Information and Communication Technologies Authority (“ICTA”)’s “Rules and Principles on Social Network Providers Decision” dated September 29, 2020 regulating the obligations’ scope and execution, has been published on Official Gazette and come into force on October 2, 2020.
Hosting, access, content provider terms were previously regulated under Internet Law, as for the social network provider is a new term. Social network provider is defined under Law as “the natural persons or legal entities which provide the users the means to create, view, or share content such as text, visual, audio, location on internet for the purpose of social interaction”.
- Scope of Law: Under Law, local or foreign-based social network providers which the daily accesses exceed one million in Turkey, are within scope of the Law. However, certain obligations are solely required of foreign-based social network providers.
- Exceptions: The persons who broadcast on internet and include only certain parts of content for the purpose of social interaction are considered as exception. The platforms which provide content for the purpose of social interaction as a secondary or add-on service (personal internet sites, e-commerce sites and news sites etc.) are also an exception under these regulations.
- The obligation of designating an agent in Turkey: For foreign-based social network providers, it is required to designate an agent and notifying ICTA of it. If a natural person is designated as the Turkey agent, he/she can only be Turkish citizen or if a legal entity is designated as an agent, it can only be a Turkish legal entity founded in Turkey. Within the scope of stated obligation stated under Law, the designated agent’s responsibilities are referred in the Decision. The social network provider which does not conform with the obligation of designating an agent and notifying ICTA of it, it is foreseen that ICTA shall impose stepwise sanctions. For the foreign-based social network provider which violates the obligation of designating an agent, the first step would be ICTA fining an administrative fine amounting 10.000.000 TL, the second step would be ICTA enforcing an administrative fine amounting 30.000.000 TL. Within 30 days after the notification date of administrative fee amounting 30.000.000 TL, in case the obligation to designate an agent would not be performed, natural persons and legal entities residing in Turkey which are taxpayers would be banned to give an advertisement to the noncompliant social network provider, in other words the advertisement ban would be enforced. Once again, within 3 months after the date of the advertisement ban decision, if the hereby obligation has not been performed yet, the social network provider’s bandwidth may be reduced up to 50% by the decision of criminal courts of peace. Within 30 days after the decision if the obligation is still not performed this time the bandwidth may be reduced up to 90% following the same procedure.
- Responding to the claims of removal of broadcasting: For foreign-based or local social network providers, an obligation has been brought forth to respond to relevant persons’ claims in 48 hours from the claim under Article 9 and Article 9/A (regarding the right of privacy) of Internet Law. The sanction enforced in case of a violation of this rule, would be the be ICTA fining an administrative fine amounting 5.000.000 TL. Under Article 19 of Decision, while evaluating the efficiency of the performance of the social network providers obligations’, the factors to be considered are stated namely but not limited to therein: the inability to facilitate the necessary systems, giving negative answers without justification.
- The obligation of reporting: Foreign-based and local social network providers shall deliver reports to ICTA in relation to the removal of the content and/or prevention of access decisions’ execution and; statistics and categorized data regarding the claims from direct relevant persons for periods of 6 months. Reports regarding the relevant persons’ claims shall be published on the social network provider’s website by removing the personal data. It is foreseen that, the social network providers which violate these obligations, shall be fined an administrative fine amounting 10.000.000 TL by ICTA.
- Data localization: Under Law, foreign-based or local social network providers shall take necessary measures to host the data of the users who are in Turkey, in Turkey. Under Decision, any necessary measures shall be taken to store basic user profiles and other data which shall be determined by ICTA in Turkey. Any sanctions have not been foreseen in case of a violation of these regulations.
In conclusion; social network provider has been regulated under Law as a new term, certain obligations have been regulated for foreign-based and local social network providers. In case of a violation of these obligations, dissuasive sanctions have been brought forth.