Potential Bandwidth Restrictions for Social Network Providers in Turkey: Do They Comply with the European Convention on Human Rights?
In July, Turkey introduced the Amendment on Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of Such Publications (“Amendment”), also known as the “Social Media Law”, which included provisions relating to social network providers.
The Amendment defined “social network providers” as “the persons who provide a platform for its users to create, view and share written, visual or audio content or location on the internet for social interaction” and imposed additional obligations on social network providers regarding the appointment of a representative, data localization and addressing user complaints.
The most important of these obligations was the appointment of a local representative in Turkey to act as the contact person between the social network provider and the authorities in Turkey. Social network provides who fail to appoint representatives will be subject to tiered sanctions prescribed under the Amendment.
Following the publication of the Amendment, the Information and Communication Technologies Authority (“ICTA”) published the Principles and Procedures regarding Social Network Providers on October 2, 2020, and notified social network providers to appoint a local representative accordingly.
On November 4, 2020, the Deputy Minister of the Ministry of Transportation and Infrastructure announced on Twitter that the term for appointing a representative for the notified social network providers expired on November 2, 2020. Consequently fines of TRY 10 million, the first tier of sanctions, have been applied against social network providers who failed to appoint a local representative. While the announcement stated that sanctions have been applied against a number of social network providers, Facebook, Twitter, Instagram, YouTube, TikTok and Periscope were all individually namechecked.
The Deputy Minister further indicated that the sanction system will apply if the violation continues and that the subsequent tiers would be applied accordingly.
As a reminder the subsequent tiers of sanctions are as follows:
(i) If a local representative is not appointed within 30 days of notification of the initial fine, a further fine of TRY 30 million will be issued,
(ii) If a local representative is not appointed within 30 days of notification of the second fine, a prohibition on advertising on the social network provider will be implemented,
(iii) If a local representative is not appointed within three months of the advertising ban, the bandwidth access to the social network provider will be throttled by up to 90% of their original bandwidth.
Therefore, social network providers have 30 days to appoint a local representative or risk a further fine.
The ICTA did not publish its decisions regarding the sanctions, therefore, the actual date of notification of the administrative fine is unknown. However, as the announcement was made on November 4, the decision was most likely made between November 2 and November 4. Consequently, the deadline for relevant social networks to appoint a representative to avoid a further fine is the beginning of December 2020.
The sanctions imposed show that Turkey intends to enforce the new obligations despite the unwillingness of social network providers, especially on the issue of local representatives.
Although the amount of the administrative fines will most likely not have a significant impact on many of the foreign social network providers, further sanctions such as the advertising ban and decreased bandwidth will prove to be more significant as they will directly impact the business and operations of the social network providers. However, due to the economic benefits that accessing such social network providers and their advertising platforms provide to Turkish companies, more detailed economic considerations may come into effect prior to the implementation of the final two tiers of sanctions.
The near future will show whether the accessibility of social networks will continue in Turkey.