Potential Bandwidth Restrictions for Social Network Providers in Turkey: Do They Comply with the European Convention on Human Rights?
Bentley James Yaffe,Atakan Gungordu
On 31 July 2020, Turkey amended its law regulating internet publications (the “New Social Media Law”) to include a number of changes regarding (i) the obligations of social network providers, (ii) rights of application and means of recourse for users, (iii) data storage, and (iv) content removal. Among these changes, the obligations imposed on social network providers, in particular the obligation to designate a representative in Turkey, have been at the centre of a contentious debate since its enactment. Turkey’s main opposition political party has stated that it will be filing an application for the annulment of the law before the Turkish Constitutional Court.
The New Social Media Law included significant sanctions against social network providers that failed to designate a local representative in Turkey by 1 October 2020. The sanctions were structured in a system of five tiers, with the initial tier being an administrative fine of TRY 10 Million (approx. EUR 1 Million) that was to be levied on social network providers who failed to appoint a local representative in the month following the initial deadline. The second tier of sanctions was another administrative fine of TRY 30 Million (approx. EUR 3 Million) to be levied in the event that non-compliance continued for a further month.
While VKontakte, a Russian-based social media company, designated a representative in accordance with the New Social Media Law, many major social network providers such as Facebook, Twitter, YouTube, and TikTok have either defied the obligations introduced by the amendments or have chosen to remain silent on the issue. As a result, following the expiry of the deadlines, the non-compliant companies have been issued with administrative fines by Turkey’s Information Technologies and Communications Authority.
The remaining three tiers of sanctions will have greater effects on the major social network providers and their users in Turkey.
In January 2021, should the third tier of sanctions be applied, non-compliant social network providers will not be able to accept advertisements from Turkish tax-payers, which will be a huge blow to the marketing reach of Turkish businesses as well as to the ad revenues of the social network providers. If non-compliance persists, the fourth tier of sanctions provides for an initial 50% reduction of internet traffic bandwidth for the social media platforms in April 2021, which will be followed by the final tier of sanctions; a further bandwidth reduction that could go up to 90% by May 2021.
In our first article on the topic, we addressed the overall implications of the New Social Media Law and its consequences for social network providers. Our second article focused on the administrative fines issued by Turkey’s Information Technologies and Communications Authority. In this article, we will take a broader approach and assess whether the final two sanctions enshrined in Turkey’s New Social Media Law, namely the bandwidth restrictions, comply with Article 10 (freedom of expression) of the European Convention on Human Rights (“ECHR”) based on the European Court of Human Rights (“ECtHR”) case-law.
The ECtHR’s stance on the matter is particularly relevant as Turkey has ratified the ECHR and its provisions take precedence over domestic laws as per Article 90(5) of the Turkish Constitution. As a result of Turkey’s ratification of the ECHR, natural and legal persons whose rights have been violated within Turkey’s jurisdiction can apply to the ECtHR after exhausting domestic remedies. Not least, the Turkish Constitutional Court largely follows the standards set by the ECtHR in its judgments, meaning that ECtHR judgments play a role in shaping domestic jurisprudence in Turkey.
What Does the European Court of Human Rights Say About Bandwidth Reduction?
The ECtHR has a well-established case law defining the internet as “one of the principal means of exercising the right to freedom of expression and information.” Over the last decade, the ECtHR has established a number of standards through which it assesses the compliance of government-initiated content removal and website blocking with Article 10 of the ECHR.
When an application is brought before it regarding content removal and website blocking, the ECtHR runs the legality, legitimate aim, and necessity tests with due consideration made to the criteria of, inter alia, (i) the nature of the online expression, (ii) the availability of alternative means, (iii) the characteristics of the website, and (iv) the reach and impact of the online expression.
With that said, these criteria were created by the ECtHR in the context of content removal and website blocking cases. To the best of our knowledge, the ECtHR has not ruled on any applications that concern the reduction of bandwidth. In this respect, the only ECtHR judgment that may provide guidance for cases of bandwidth reduction, albeit by analogy, is the recent judgment of Pendov v. Bulgaria.
The European Court of Human Rights: Limited Functionality of a Website Violates Article 10 of the ECHR
The facts of Pendov v. Bulgaria are fairly straightforward: the Bulgarian prosecutor’s office seized and retained the applicant’s server as part of an ongoing investigation into third parties. The retention of the applicant’s server led to the limited functionality of Mr. Pendov’s website, which contains artistic works from Japanese anime culture.
After exhausting the domestic remedies in Bulgaria, Mr. Pendov applied to the ECtHR arguing that the retention of his server and its data precluded him from running his website smoothly and, thus, violated his right to freedom of expression enshrined under Article 10 of the ECHR.
Despite the applicant’s failure to provide a detailed account of the extent of the limited functionality of his website, the ECtHR found that the unnecessary and prolonged retention of Mr. Pendov’s server, which gave rise to his website’s limited functionality, was an interference with his Article 10 rights and a violation thereof.
The ECtHR further held in Pendov v. Bulgaria that the interference was a result not only of the retention of his server hardware but also of the data held on it. Although the Bulgarian government had argued that the authorities did not intend to shut down the applicant’s website, the limited functionality of the applicant’s website was enough for the ECtHR to find a violation of Article 10 of the ECHR, disregarding the intentions of the public authorities.
Will Bandwidth Reduction Constitute “Limited Functionality” and a Violation of Article 10 of the ECHR?
The bandwidth sanctions that could be implemented next year in Turkey are not measures that block social network providers per se. However, particularly the final sanction that reduces bandwidth by up to 90% will be, without a doubt, considered an interference with the right to freedom of expression.
Drawing from the judgment of Pendov v. Bulgaria, the ECtHR does not consider whether the state’s intentions are to shut down a website. On the contrary, it focuses on the practical consequences of measures taken by state authorities. Therefore, it is irrelevant to the ECtHR whether interference with Article 10 of the ECHR takes place via retention of physical servers, like in Pendov v. Bulgaria, or through a bandwidth reduction imposed by a regulatory authority.
Moreover, in Pendov v. Bulgaria, the ECtHR was satisfied with the applicant’s account of facts even though he failed to provide detailed evidence, setting a low bar for such restrictions to be regarded as “interference” under the ECHR.
In light of this, it would not be a surprise if the ECtHR concludes that the sanction of bandwidth reduction under Turkey’s New Social Media Law would, at the very least, lead to the limited functionality of social network providers giving way to the ECtHR’s substantive analysis based on its standards on website blocking.
Would Social Network Providers Be Afforded Higher Protection in Comparison to Pendov v. Bulgaria Based on ECtHR Criteria on Website Blocking?
The nature of expression, be it a personal, academic, artistic, or political, is a factor that the ECtHR takes into account when assessing whether an intervention with such expression is necessary in a democratic society. In general, the ECtHR affords a higher protection to political and academic expression compared to artistic and commercial expression. However, as seen in Pendov v. Bulgaria, even though the applicant’s website had a purely artistic nature, the ECtHR still found a violation of Article 10.
As well as the nature of expression, the ECtHR also takes into account the characteristics of a blocked website as a whole. For instance, in Cengiz & Others v. Turkey, the ECtHR referred to YouTube as a very popular forum for political and public debates and recognized its enabling environment for citizen journalism and political dissent. As a result of these characteristics, the domestic authorities were required to provide weightier reasons to justify blocking the entire platform.
The ECtHR’s criteria for both the nature of expression and the characteristics of a website mean that if a case relating to bandwidth sanctions makes its way to Strasbourg, the Turkish government may have a hard time justifying such blanket restrictions on the right to freedom of expression that will occur following the implementation of bandwidth reduction. This is because an immense amount of diverse expression is hosted on social networks, and at least some of them, such as YouTube and Twitter, have become integral parts of a well-functioning democracy.
While Turkey’s New Social Media Law will not cease to be at the centre of public debate in the foreseeable future, it seems that the sanctions stipulated under this law will continue to be introduced by Turkish authorities as most of the major social network providers have so far failed to designate representatives in Turkey.
In addition, although the main opposition party has said that they will be filing a case for the annulment of the New Social Media Law before the Turkish Constitutional Court, it would be mere speculation to guess the direction of any potential judgment in this respect.
With this dynamic in mind, if Turkey’s New Social Media Law remains in force and the social network providers do face significant reductions in their bandwidth by May 2021, applying to the ECtHR may be an effective remedy for both the sanctioned companies and the individual users, based on the ECtHR’s current case-law.
 The Amendment on the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications, published on the Official Gazette dated 31 July 2020 and numbered 31202.
 Social network providers are defined in the New Social Media Law as “real or legal persons who provide the opportunity to users to create, view or share content such as text, video, audio or locations online for the purpose of social interaction”.
 Atakan, Didem. “Russia’s VKontakte Only Social Media Platform to Appoint Local Representative to Turkey, Says Expert.” Duvar English, 11 Nov. 2020, www.duvarenglish.com/science-tech/2020/11/02/no-social-media-platform-other-than-russias-vkontakte-has-appointed-local-representative-in-turkey-says-expert ; Murphy, Hannah. “Facebook to Defy New Turkish Social Media Law.” Financial Times, 5 Oct. 2020, www.ft.com/content/91c0a408-6c15-45c3-80e3-d6b2cf913070
 Kozok, Firat. “Biggest Social Media Companies Are Fined by Turkey Under New Law.” Bloomberg, 4 Nov. 2020, www.bloomberg.com/news/articles/2020-11-04/biggest-social-media-companies-are-fined-by-turkey-under-new-law.
 ECtHR, Times Newspapers Ltd (Nos. 1 and 2) v. The United Kingdom, nos. 3002/03 and 23676/03, 10 March 2009, §27.
 For a detailed account of these standards, please see: Gungordu, Atakan. “The Strasbourg Court Establishes Standards on Blocking Access to Websites.” Strasbourg Observers, 26 Aug. 2020, strasbourgobservers.com/2020/08/26/the-strasbourg-court-establishes-standards-on-blocking-access-to-websites.
 For the contrast between the protection afforded to political and commercial expressions, please see: ECtHR, Rebechenko v. Russia, no. 10257/17, 16 April 2019, §27; ECtHR, Akdeniz v. Turkey (dec.), no. 20877/10, 11 March 2014, §26.
 Geiger, Christophe, and Elena Izyumenko. “Blocking Orders: Assessing Tensions with Human Rights.” SSRN Electronic Journal, 2019, p. 13.
 ECtHR, Rebechenko v. Russia, no. 10257/17, 16 April 2019, §25.
 Murray, Daragh. “Freedom of Expression, Counter-Terrorism and the Internet in Light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights.” Netherlands Quarterly of Human Rights, vol. 27, no. 3, 2009, p. 349.
 ECtHR, Pendov v. Bulgaria, no. 44229/11, 26 March 2020.
 ECtHR, Pendov v. Bulgaria, no. 44229/11, 26 March 2020, §57.
 ECtHR, Pendov v. Bulgaria, no. 44229/11, 26 March 2020, §58.
 ECtHR, Pendov v. Bulgaria, no. 44229/11, 26 March 2020, §56.
 Cengiz & Others v. Turkey, nos. 48226/10 and 14027/11, 1 December 2015, §51-52.