Clarification of the Scope of Implementation
Appointing a Representative
Data Localisation Requirements
User Requests and Reporting
In July 2020, the Amendment on the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications (“Amendment”) was published, imposing new obligations on “social network providers”. While the Amendment itself was not a separate law, due to the primary area of impact and the introduction of a new definition for social network providers, it has become widely referred to as the “Social Media Law”.
On October 2, 2020, the Information and Communication Technologies Authority (“ICTA”) published the Principles and Procedures regarding Social Network Providers (the “Principles”). With the Principles, the ICTA has provided further details as to the implementation of the obligations introduced by the Amendment. While the content of the Principles is mostly the reiteration of the language included in the Amendment, there are a number of important points as to the coverage and scope of the obligations that have been clarified.
One of the most significant aspects of the Principles is that it has defined the scope of application with regard to the obligations imposed by the Amendment.
As per Article 2 of the Principles, real and legal persons that only provide social interaction in a limited capacity as a part of their online broadcast will not be regarded as social network providers. Furthermore, platforms such as personal websites, e-commerce websites and news portals, where social interaction is a secondary and ancillary service are not considered to fall under the scope of implementation.
The Principles also clarify how the 1 million daily access threshold is determined. As this threshold is the trigger for a number of the obligations imposed under the Amendment, the clarification provides a level of certainty and a determination mechanism. As per the mechanism introduced under Article 23 of the Principles, social network providers claiming to have been consistently below the 1 million daily access threshold can apply to the ICTA to verify their claim, thereby removing them from the scope of the additional obligations.
The same article also provides the ICTA with a mechanism of independent and active review, where any determination that consistent daily access to a social network provider has surpassed 1 million will result in notification that they once again fall under the scope of additional obligations.
The Amendment had introduced a general obligation for social network providers to appoint a representative in Turkey. As clarified in the Principles, the representative must either be a legal person who is established in Turkey or a real person who is a Turkish citizen.
As established in the Amendment, the representative will be responsible for conducting the necessary procedures regarding the services, notifications and requests of the public authorities, responding to any applications that fall under the scope of, and carrying out the other obligations under, Law numbered 5651.
As a measure of accountability and transparency, the name and contact information of the representative must be displayed on the website of the social network provider. This information must also be separately notified to the ICTA.
As per the Amendment, social network providers who do not appoint a representative will be subjected to sanctions including administrative fines up to TRY 30 million, advertising bans and a decrease in their bandwidth. These sanctions will be implemented in a tiered system as below:
(i) At the first stage, the ICTA will notify the social network provider that a representative has to be appointed.
(ii) Any social network provider that does not comply with this obligation within 30 days of notification will have an administrative fine of TRY 10 million imposed upon them.
(iii) In the event that a social network provider does not comply with this obligation within 30 days of the first administrative fine, they will be fined an additional TRY 30 million.
(iv) A social network provider that does not appoint a representative within 30 days of the second fine, will be subject to an advertising ban.
Decisions regarding advertising bans will be published in the Official Gazette.
Following this decision, representatives are prohibited from publishing new advertisements on such platforms, executing any new contracts and transferring funds.
However, due to the explicit wording used in the relevant provision regarding a prohibition on “new” advertisements and payment of funds subsequent to the decision published in the Official Gazette, it could be interpreted that such a ban will not affect advertising contracts and arrangements existing prior to the implementation of the ban. Therefore, advertisements subject to such prior arrangement may be able to continue, provided that the contract regarding the advertisement was signed and the consideration was paid before the prohibition came into effect.
The risk of such a ban being implemented may also impact the types of agreements and account pre-payments utilized by companies making use of such advertising services in Turkey.
(v) In the event that a social network provider insists on not appointing a representative within three months of the advertisement ban, the platform’s bandwidth will be decreased. The eventual decrease may be up to 90% of their original bandwidth.
Should a social network provider appoint a representative at any point during the aforementioned tiers of sanctions, any implemented advertising ban will be removed, and their bandwidth level restored. Furthermore, upon the appointment of a representative social network providers will only have to pay a quarter of the administrative fines imposed against them.
The Amendment had introduced a general obligation for social network providers to localise the storage of Turkish users’ data. The Principles have not provided much clarification for this obligation, stating only that priority should be given to ensuring the localisation of fundamental user data and any other data relating to areas identified by the ICTA. The measures implemented to ensure such localisation must be included in the periodic reports provided to the ICTA.
As per the Amendment, social network providers are obliged, through their representative, to respond to requests from their users and other persons within 48 hours. Social network providers who do not comply with the above will be fined TRY 5 million.
To ensure accessibility, the Principles state that social media platforms must enable the Turkish language for their applications.
In addition, social network providers are required to submit a semi-annual report to the ICTA regarding their responses to these obligations. An administrative fine of TRY 10 million will be imposed on social network providers who fail to submit reports.
As per the clarification introduced in the Principles, the ICTA will use the semi-annual reports to review how obligations regarding user applications are fulfilled by taking into account:
(i) whether a social network provider has established the necessary systems for these demands to be submitted,
(ii) whether a social network provider consistently rejects the applications of specific persons or entities,
(iii) whether a social network provider consistently misses deadlines for answering such demands and
(iv) whether a social network provider rejected such applications without justification.
The Principles have provided a few important clarifications as to the implementation of the Social Media Law, particularly in terms of the determination of the scope of obligations and certain criteria that the ICTA will consider when assessing whether or not to resort to any of the sanctions introduced with the Amendment.
However, due to the fact that the Principles are essentially the restated and rephrased provisions that were introduced with the Amendment, a lot of areas of implementation remain unclear. What is clear is that the relatively short time span between the Amendment coming into effect and the publishing of the Principles, shows that the ICTA is sending a clear message of its intent to enforce the new obligations, despite a continued lack of clarity in areas such as data localisation requirements.
Particularly considering the tiered sanctions that range to the point of a ban on advertising and bandwidth throttling, it is clear that both actual and threatened enforcement of such sanctions will have a significant impact on the social network and social media landscape in Turkey. How social network providers operate in Turkey may be reshaped depending on the revenues their userbases and advertising generate, and their willingness to outwardly comply with the obligations.
Both foreign and domestic social media networks operating in Turkey should proceed on the general expectation that all relevant steps must be taken to ensure compliance with their obligations and that, while perhaps not uniformly applied, the near future will see the implementation of the sanctions introduced under the Amendment.