SOCIAL NETWORK PROVIDER CONCEPT AND OBLIGATIONS 23 December 2020

Under the Law on Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts ("Law"); liabilities and responsibilities of content providers, hosting providers, access providers, collective use providers and the principles and procedures regarding the fight against certain crimes committed on the internet through content, hosting and access providers are regulated. Within the scope of the Law, with the amendment made on 31.07.2020, the concept of social network providers was introduced and some obligations and sanctions were stipulated for the same. Following the entry into force of the amending provisions on 01.10.2020, the fulfillment of these obligations by the social network providers defined in the Law and the imposition of various sanctions such as administrative fines and access restrictions as a result of the non-fulfilled obligations will be in question.

1. WHAT IS A SOCIAL NETWORK PROVIDER?

The definition of the concept of social network provider has been added to the Article 2 of the Law. Social network provider refers to real or legal persons who allow users to create, view or share content such as text, images, sound, location on the internet for the purpose of social interaction. In this context, platforms such as Facebook, Instagram, Twitter are accepted as social network providers.

2. THE OBLIGATIONS OF SOCIAL NETWORK PROVIDERS
   
   

1. Representative Requirement

According to the Law, foreign social network provides are required to appoint a representative in Turkey. The said representatives must consist of at least one authorized person appointed in order to fulfill the requirements of notifications or requests sent by the Information and Communication Technologies Authority ("Authority"), Access Providers Association ("ESB"), judicial or administrative authorities; to respond to applications made by individuals and to ensure the fulfillment of other obligations under the Law. The representative can be a real person or a legal entity, but if the representative is a real person, he/she must be a Turkish citizen.

2. Response Obligation For Removal Requests

Social network providers are obliged to respond to content removal requests from individuals for content that violates personal rights and privacy within a maximum of 48 hours. If the request is rejected, the justification behind the response must be provided. The implementation of this obligation will start within 3 months from the effective date of the provision. Accordingly, the deadline is 01.01.2021 and as of this date, requests for content removal must be responded by social network providers.

3. Reporting Obligation

The domestic and foreign social network providers with more than a million daily access from Turkey must provide to the Authority statistical and categorical information reports about all requests received within the six-month period and the application of the requests with regard to the removal of the content and access blocking. In addition, these reports will be published on the social network provider's own website by clearing any personal data.

4. Contents Removed by Court Decision

In the event that the content that is determined to be unlawful by a judge or court decision is notified to the social network provider, the social network provider who does not remove the content or block the access within 24 hours despite the notification will be held liable for compensation for damages incurred. There is no requirement to apply to the content provider or to file a lawsuit against the social network provider for the execution of this legal liability.

3.  SANCTIONS TO BE APPLIED IN CASE OF VIOLATION OF SUCH OBLIGATIONS

Within the scope of the Law, it is foreseen that various sanctions will be applied in case of violation of the obligations mentioned by social network providers.

1. Violation of Representative Requirement

The social network provider who fails to fulfill the obligation to determine a representative shall be notified by Authority. If the social network provider fails to fulfill its obligations within 30 days following the notification of Authority, administrative fines may be imposed gradually, followed by access restriction sanctions. Accordingly;

• The Authority imposes an administrative fine of TRY 10,000,000,
• If the foreign social network provider does not appoint a representative and notify the Authority within 30 days after the imposition of the above administrative fine, the Authority may impose an additional administrative fine of TRY 30,000,000,
• In the event that this obligation is not fulfilled within thirty days after the notification of the administrative fine for the second time, the Authority prohibits real persons and legal entities from advertising to the relevant social network provider, within this scope a new contract cannot be established and money transfer is not possible.
• If the obligation is still not fulfilled within three months from the date on which the advertising ban decision was made, the Authority may apply to the criminal judge of peace to reduce the internet traffic of the social network provider by %50.
• In the event that the said obligation is not fulfilled within thirty days after the decision of the judge regarding the acceptance of the application, the Authority may apply to the criminal judge of peace to reduce the internet traffic of the social network provider up to %90.
• The judge may determine a lower rate, taking into account the nature of the service provided, provided that it is not less than fifty percent, in his decision upon the second application. The Authority may appeal against these decisions in accordance with the provisions of the Code of Criminal Procedure.
• The decisions made by the judge are sent to the Authority to be notified to the access providers. The requirements of the decisions are fulfilled immediately and within four hours at the latest by the access providers.
• In case of fulfillment of the obligation to determine and report a representative; one fourth of the administrative fines imposed will be collected, the advertising ban will be removed and the decisions of the judges will automatically become null and void. Access providers will be notified in order to terminate the intervention on internet traffic bandwidth.

2. Violation of Response Time

An administrative fine of TRY 5,000,000 will be imposed on the social network provider that fails to respond to content removal requests.

3. Violation of Reporting Requirement

An administrative fine of TRY 10,000,000 will be imposed on the social network provider that fails to fulfill reporting requirements.