with Çiğdem Gizem Okkaoğlu, originally published @Mondaq –
Facebook, Instagram, Twitter, Youtube, Periscope, and TikTok are fined TRY 10 million (EUR 1 million), each failing to comply with the new regulation governing social media services. This is the first of the five steps in the penalty process due to not appointing a local representative in Turkey. Further steps of the process compromise different types of punishments, including reducing operators’ internet traffic bandwidths, range of administrative fines, advertisement ban, and payment of damages.
Background of the new social media regulation
The rise of communication technologies through the Internet is one of the largest developments in the last decade. Among all the communication technologies, social media platforms stand out with their dynamic and innovative structure as they re-shape the way people receive information about each other and the world. Communities become hyper-connected thanks to Facebook, Youtube, Twitter, TikTok, and similar widely-used platforms. With an increasing number of users counted in millions, these platforms fasten and ease the social interaction and access to information.
Besides bringing enormous benefits for the citizens, social media and networks might also constitute a threat to society. They sometimes cause the increase of online disinformation, the spread of illegal content, and the emergence of monopolies.1 Considering social media and networks have even started to dominate the mainstream media recently, the risks must be eliminated, and the social media should be “cleaned up”, according to President Erdoğan.2
Since the previous regulations were insufficient to catch the age, design, and implementation of a proper regulation policy to ensure social media platforms and social networks are safe, reliable, and trustworthy is now of great importance for balancing the harms and benefits explained above. For this purpose, Turkey has taken steps to regulate social media platforms through the amendments in its Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed Through such Broadcasts (“Internet Law”). Amendments3 entered into force as of 1 October 2020; which governs the obligations and liabilities of providers of content, hosting, access and public use and also includes provisions related to combatting the illegal content on the Internet.
The Amendments are said4 to be modeled on the Act to Improve Enforcement of the Law in Social Networks (“NetzDG“), also called the “Digital Berlin Wall”5, which entered into force in Germany on 1 October 2017. According to the German Federal Ministry of Justice and Consumer Protection, NetzDG “aims to fight hate crime, criminally punishable fake news and other unlawful content on social networks more effectively”.6 NetzDG includes the design of an effective complaints management system, biannual reporting obligation for operators and administrative fines. It also includes the obligation to name a person in Germany who is authorized to receive service of process in regulatory fine (only for social media platforms with two million users) and civil proceedings. NetzDG also mandates social media platforms with more than two million German users to remove or block access to content that is manifestly unlawful within 24 hours of receiving the complaint.7
Details of the regulation
Similarly, the Amendments in Internet Law requires social network providers that are accessed in Turkey more than 1 million daily access from Turkey to have a local office in Turkey, which brings them to a position subject to local laws. These operators are obliged to have local data storage of users in Turkey and have a notice and takedown process, allowing users to send a notice of unlawful material or violation of rights. The operator has 48 hours to remove it. Moreover, the operators are obliged to conduct a process to remove the content to protect the right to be forgotten.
On 2 October 2020, only a day after the Amendments in the Internet Law entered into force, the Information and Communication Technologies Authority (“ICTA“) published its decree on the “Principles and Procedures regarding Social Network Providers”. It provides the details regarding the scope, implementation, and sanction of the obligations introduced by the New Internet Law.8
If the providers fail to comply with the regulations, the ICTA can impose different types of punishments, including reducing operators’ internet traffic bandwidths, range of administrative fines, advertisement ban, and payment of damages.
According to the Amendments in Internet Law, if a social network operator with more than 1 million daily access from Turkey fails to appoint a representative, ICTA will issue the punishments in five steps to penalize the operator.
- The first step is to impose an administrative fine of TRY 10 million (approx. EUR 1 million).
- The second step is to impose an administrative fine of TRY 30 million (approx. EUR 3 million), if the foreign social network provider still fails to appoint a representative within thirty days after the notification of the first administrative fine stated above.
- The third step is to ban the advertisements on the operator’s site if the operators still fail to appoint a representative within thirty days after the second administrative fine notification. Advertisement ban includes prohibiting natural and legal persons from giving advertisements to the relevant social network provider, executing agreements with the applicable social network provider, or transferring money in relation to the relevant social network provider.
- The fourth step is to block 50% of the site’s internet traffic bandwidth by resorting to a court of peace, if the operator still fails to appoint a representative within the three months after the advertisement ban.
- The fifth step is to block 90% of the site’s internet traffic bandwidth by resorting to a court of peace, if the operator still insists on not complying with the regulation within the 30 days after the first reduction in bandwidth.
Even after the fifth step, if a social network operator complies with the regulation and appoints a representative in Turkey, only one-fourth of the administrative fines will be collected by the day of compliance. The advertisement ban will be removed, and intervention with the internet traffic bandwidth will be ended.
The first administrative fine
2 November 2020 was the deadline for appointing a representative in Turkey for social network operators. Russian social media platform operator VKontakte notified ICTA about its new representative in Turkey. On the other hand, the chairman of the ICTA, Omer Abdullah Karagozoglu, announced on his Twitter account9 that Facebook, Instagram, Twitter, Youtube, Periscope, and TikTok are fined TRY 10 million (EUR 1 million) each for not complying with the regulation related to the appointment of a representative in Turkey, which is the first of the five steps in the penalty process. The next step is to impose an administrative fine of TRY 30 million (approx. EUR 3 million), if these operators still do not appoint a representative within thirty days after the first administrative fine notification.
1. https://ec.europa.eu/digital-single-market/en/social-media-and-networks-innovation-and-policy , accessed on 6 November 2020.
3. https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5651.pdf , accessed on 6 November 2020, available only in Turkish.
4. https://justitia-int.org/en/the-digital-berlin-wall-act-2-how-the-german-prototype-for-online-censorship-went-global-2020-edition/, accessed on 6 November 2020.
6. https://www.bmjv.de/DE/Themen/FokusThemen/NetzDG/NetzDG_EN_node.html , accessed on 6 November 2020.
8.https://www.btk.gov.tr/uploads/boarddecisions/sosyal-ag-saglayici-hakkinda-usul-ve-esaslar/274-2020-web.pdf , accessed on 6 November 2020, available only in Turkish.
9. https://twitter.com/oakaragozoglu/status/1323930930235527168 , accessed on 6 November 2020, available only in Turkish.