Social Network Providers’ obligations and sanctions to be applied under Social Media Law
Law numbered 7253 and titled as the Law Amending the Law on the Regulation of Broadcasts Made on the Internet and the Fight Against Crimes Committed Through These Publications (“Social Media Law”) which entered into force after being published in the Official Gazette on 31 July 2020 has made some amendments and additions within the Law numbered 5651 on the Regulation of Broadcasts Made on the Internet and the Fight Against Crimes Committed Through These Publications (“Internet Law”).
While it is known that the Network Enforcement Law in Germany taken as an example during the preparation of the Social Media Law, the changes have been brought with Social Media Law can be categorized within two different groups as (i) obligations of social network providers and enforcements in the event of failure to comply with such obligations and (ii) other changes. This Article’s focus will be on the obligations and enforcements stipulated in Social Media Law for social network providers.
The definition of social network providers has been introduced with Social Media Law and accordingly social network providers refer natural or legal person who enable users to create, view, or share content such as text, images, sound, or location on the internet for social interaction purposes. However, the definition above is ambiguous and incomplete, and it is possible that many people and companies operating in the internet environment may be included in the definition of social network provider. In order to avoid confusion that may arise in this context, it is imperative that this statement be clearly specified in the future.
Obligation to Appoint Representative
One of the main obligations of social network providers is to appoint and notify a representative as per Social Media Law. In line with Article numbered 6/1 of Social Media Law, Provisional Article numbered 4 has been added to Internet Law. As per such Article, at least one person must be appointed as a representative to be located in Turkey for foreign based social network providers with more than 1 million access each day within Turkey. Appointed representative must be also announced on the website of the social network provider and Information and Communication Technologies Authority (“ICTA”) must be notified of the appointment of representative. Social network providers that fail to comply with the obligation to appoint a representative are under the threat of gradually increasing sanctions as following.
In the first stage, ICTA will notify the social network providers to fulfill their obligations to comply with appointment of a representative provision and if the obligations are not fulfilled within 30 days, an administrative fine of TRY 10 million will be imposed which to be followed with an additional administrative fine in the amount of TRY 30 million within the following 30 days if the obligations are still not fulfilled. In the event of continuation of failure to comply with the appointment and notification obligations regarding representative, prohibition of giving an advertisement by tax payers located in Turkey to social network providers will take place. If the contradiction to such obligation continues for 3 more consecutive months, the social network provider’s internet traffic bandwidth will be reduced by at least 50% at first which to be followed up to 90% in case of continuation. If the social network providers fulfill their obligation to appoint and notify representatives to ICTA, all decisions will be voided accordingly.
Obligation of Application of Content Removal Requests and Periodic Reporting to ICTA
Pursuant to the validation of Social Media Law, local or international based social network providers with access more than 1 million each day by Turkish users are required to comply with content removal requests for the contents that violates individuals’ personal rights or their privacy. Such obligation requires social network providers to respond positive or negative to such requests within 48 hours. Social media providers who meet above stated criteria, are also obliged to report before ICTA every 6 months with respect to the demands decisions that they have been notified with. Also, such reports must be published on the website of social network providers so that they will be publicly accessible. An administrative fine of TRY 5 million and 10 million will be imposed for breach of the obligation on content removal and reporting obligation, respectively.
Data Localization
Another noticeable obligation on local and international social network providers with access over 1 million users daily in Turkey is storage of users’ data within Turkey. As per Social Media Law, social network providers are obliged to store data of Turkish users within the borders of Turkey.
Enforcements and Current Situation
The above-described changes in obligations and sanctions to some foreign social network providers have brought in along with the fines and in November 2020 social media providers such as Youtube, Twitter, Facebook, TikTok, Periscope have been fined in the amount of TRY 10 million due to failure to appointment of representative obligation. Said providers have been additionally fined in December 2020 in the amount of TRY 30 million for not taking any action to comply with respective provisions and yet still being incompliant with Social Media Law.
In this regard, if the obligation to appoint a representative and notify ICTA for the appointment of a representative is not fulfilled, ICTA may bring internet band traffic restriction and advertisement prohibition practices to the said social network providers.
In addition, Netflix, a company that may be referred as social network provider under Social Media Law, has recently announced that they will be opening an office in Turkey. In this context, Netflix is not expected to face any administrative fines in terms of its obligation to appoint a representative as a social network provider.