NEW REGULATION ON SOCIAL NETWORK

What is the Regulation on Social Network?

With the “Law on the Regulation of Broadcasting on the Internet and the fight against crimes committed through these broadcasts” (“Law”) published in the official gazette on 31.07.2020 with the number of 31202, besides the new regulations, there is also a new term named “social network provider” added to the Law. This term covers all natural and legal persons that broadcast using audio, video, or in writing, and that aims social interaction. Although it is clear that the regulation is mostly made regarding the social media platforms such as Facebook, Instagram, Twitter, and other popular social media platforms, it is possible that forums, blogs, sale websites, and any other related platforms are also covered by this regulation since the wording of the regulation is broad and abstract.  As a matter of fact, the regulation mainly imposes additional obligations on real or legal persons who would fall under the term of “social network provider”.

What are the New Regulations after this Amendment?

One of the essential regulations which have been brought with the New regulation is that every outsourced social network provider that has more than 1 million daily accesses from Turkey is required to have a representative in Turkey. It is stated that the purpose of this regulation is to provide a healthy communication relationship to social network providers in order to overcome the difficulties while implementing the resolutions made following to the personal applications of internet users or notifications of the governmental authorities, or resolutions regarding banning, removing content, and blocking off.  In accordance with this new regulation, as of 01.10.2020 (which is the date for this Law to enter into force), in case the persons or institutions that are “social network providers” did not assign a representative in Turkey, they will be imposed an administrative fine amounting to 10 million Turkish Lira, then, in case there is still no representative attended in the 30-day pending period, an administrative fine amounting to 30 million Turkish Lira will be imposed. If the obligation to have a representative is still not fulfilled, the social network provider will be banned for three months from receiving advertisements from real and legal persons who are taxpayers in Turkey and if the violation continues, The Information Technology Authority (“BTK”) will apply to the Criminal Courts of Peace.  Upon this application, the court will be able to impose a 50 percent band contraction penalty on the social network providers in the first stage. If the demands in the Court decrees are not met in 30 days, the band contraction penalty can be increased up to 90 percent. Band contraction penalties shall be implemented in 4 hours.

As is known, in accordance with the Law Article 9, real and legal persons claiming that their personal rights are violated due to an internet content could first request the content provider and, if they could not reach it, the place provider to remove the said content. In addition to applying to the content provider or place provider, the real/legal person who claims that the right of person has been violated with the content published on the internet could apply to the Criminal Court of Peace and demand the removal of the content.

 

With the new regulation, some steps have been taken to make this process faster and more functional. Therefore, if the person thinks that there has been victimization or violation of personal rights or privacy, he/she can apply directly to the real or legal representative of the social network provider in Turkey without applying to the Court. The representative will be required to respond positively or negatively to this application within 48 hours at the latest. The social network provider that responded negatively to the request to remove the content will need to legitimately justify this response. If the representative did not  respond to the application made within 48 hours at the latest, the social network provider will be imposed an administrative sanction amounting to 5 million Turkish Lira.

In addition, with the new regulation, the representative office will be obliged to prepare 6-month reports on applications made for violation of personal right and privacy. An administrative fine amounting to 10 million Turkish Lira will be imposed in case of a failure to report. 

Another important regulation is the actions for implementation of “Right to be forgotten”, which have been discussed in the EU and around the world for so long.  In this context, persons may request to have the content removed or access blocked in their applications to Criminal Court of Peace on the grounds that their personal rights have been violated, as well as to request that their names not to be associated with the platforms on which such content exists.

In the court decrees, it will also be discussed that when a person’s name search is made to the relevant search engines, taking into account the right to be forgotten, notifications will be made regarding the absence of the website results  ( delisting from the index) subject to the request.

How Will The New Regulations Affect Social Media Users?

As explained, it is stated that the main purpose of the new regulation is to prevent violations of personal rights with the content existing on social media platforms, to ease to proceedings of the resolutions on blocking off. As a matter of fact, the idea behind the new regulation is opening representative agencies in Turkey for the social media platforms so that there will be addressees available and that the procedures will be followed in a healthier way. Although it is aimed to regulate the activities of the social networks in Turkey and fasten the process of removing the content that violates the personal rights by opening representative agencies in Turkey, it is possible that this new regulation may violate the right to freedom of speech if the control limit is exceeded. In this context, excesses in the implementation of the regulation, rather than the regulation itself, may directly cause the social media users to be doubtful for any content share to be made by them and may also cause people to avoid exercising their right to freedom of speech. The new regulations strengthen the implementation of the elimination of personal rights violations on the internet, however, the fact that the social network agencies opened in Turkey will tend to apply practically every ban and removal resolutions without any objection may also cause systematic censorship.

It is an undeniable fact that similar practices and regulations exist in EU Countries and all over the world, that digital platforms must be regulated within certain rules in our country, and that the state must take some measurements for these platforms in order to protect the personal rights of its citizens. However, it is important to note that actions to be taken in order to prevent violations of personal rights shall not violate the persons’ right to freedom of speech and that the benefit balance between these two rights shall be provided with great care.

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