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Sanctions for social media providers in Turkey: Implications of the new rules

November 2020 – The authorised regulatory body in Turkey, the Information and Communication Technologies Authority (the “ICTA”), imposed administrative fines of TRY 10 million (equivalent to approximately EUR 1 million) on social media platforms including Facebook, Instagram, Twitter, Periscope, YouTube, and TikTok as they failed to fulfil their obligation to appoint a representative following amendments to the Law on the Regulation of Broadcasts via the Internet and Prevention of Crimes Committed through Such Broadcasts (“Internet Law”).

On 29 July 2020, important amendments were made by the Turkish parliament to the Internet Law. These amendments (“New Social Media Rules”) have widened the scope of the Internet Law to cover social network providers (“SNPs”). We summarised these legislative changes in a previous article, which can be accessed here.

The relevant body overseeing the application of Law No. 5651, the ICTA, has issued a set of Procedures and Principles that shed light on how certain questions relating to Law No. 5651 will be applied to SNPs ("Procedures and Principles"). This secondary regulation was published in the Official Gazette numbered 31262, dated 2 October 2020, which entered into force on the same date.

As these changes in the legislation are new for SNPs, we believe it is important to understand the scope of the changes and sanctions foreseen in the new rules. We set out below answers to FAQs for the New Social Media Rules:

1. What falls under the definition of an SNP?

In accordance with the New Social Media Rules; any SNP, whether local or foreign, that is accessed more than one million times per day in Turkey is subject to related obligations under the amended law. SNPs can apply to the ICTA to verify their claim regarding the number of daily users. If, as a result of the investigations by the ICTA, the number of users is determined to be consistently below the one million thresholds, the SNP may be exempted from additional obligations imposed by the New Social Media Rules.

However, it is clear that online services that offer social interaction as a secondary and ancillary service, e.g., individual websites, e-commerce platforms and news sites, fall outside the scope of the definition of an SNP.

2. Which SNPs should appoint representatives in Turkey?

The New Social Media Rules state that foreign (non-Turkish) SNPs are obliged to appoint an authorised person as a representative in Turkey. Representatives can be legal entities or natural persons. However, if the appointed representative is a legal entity, it must be established in accordance with Turkish law; if the appointed representative is a natural person, that person must be a Turkish citizen.

3. What language can be used in applications made by individuals? How will the application proceed?

Applicants may file complaints or filings for to protect their personal rights or right to privacy in the Turkish language, and both domestic and foreign SNPs must respond in Turkish, which may create administrative burdens. Also, the SNP is obliged to respond to applications within 48 hours at the latest. If the response is negative, the SNP must also state the reasoning behind the refusal.

4. Which user data must be hosted in Turkey?

The New Social Media Rules stipulate that the user data of SNPs must be hosted in Turkey. However, the scope of this obligation under the new amendments is unclear. The ICTA has also not provided a satisfactory answer to this lack of clarity regarding the data that must be held in Turkey, stating only that priority is given to “basic user information” and other information to be determined by the ICTA regarding data to be hosted in Turkey.

5. What are the sanctions for non-compliance?

The New Social Media Rules set out a five-tier system for administrative sanctions, which increase gradually over time if the SNP fails to comply with the legislation.

  1. Firstly, the ICTA issues a warning notice to SNPs that should have appointed a representative. If the SNP fails to appoint a representative after 30 days from the date notification is received, the ICTA may impose an administrative fine in the amount of TRY 10 million (approximately EUR 1 million).
  2. If after 30 days from the imposition of the first sanction, there is still no representative appointed by the relevant SNP, an additional administrative fine of TRY 30 million (approximately EUR 3.1 million) may be imposed.
  3. If the SNP continues to not appoint a representative after 30 days from the second sanction, measures regarding the prohibition of receiving new advertisements will be implemented.
  4. If the SNP continues to fail to appoint a representative, the ICTA may reduce the SNP’s internet traffic bandwidth by 50% after three months from the date of notification regarding the advertisement ban.
  5. Lastly, the internet bandwidth of the relevant SNP may be decreased by 90% after 30 days from the last notification regarding the first bandwidth restriction.

    In addition to the above, SNPs that fail to fulfil the obligation to respond to the applications of their users will face an administrative monetary fine of TRY 5 million (approximately EUR 513,000).

    At the same time, all SNPs are obliged to submit a semi-annual report to the ICTA regarding their responses to applicants and the implementation of the ICTA’s decisions that are notified to the SNP regarding the removal of content and/or blocking access to content. If an SNP fails to fulfil the obligations to submit the semi-annual report, the ICTA may impose an administrative monetary fine in the amount of TRY 10 million (approximately EUR 1 million).

    In brief, sanctions mentioned above consist of five tiers and depend on the passing of a certain time period. On 2 November 2020, the first time period granted to SNPs for the fulfilment of their obligation to appoint a representative expired. In this respect, the first sanction in the amount of TRY 10 million (approximately EUR 1 million) has been imposed on the non-compliant SNPs including Facebook, Instagram, Twitter, Periscope, YouTube, and TikTok. If the SNPs continue to not comply with Law No.5651, the next sanctions in the tier system shall be imposed.

    Conclusion

    With the New Social Media Rules in force, SNPs with more than one million users will need to consider the impact of the Internet Law on their operations. To date, it appears that Russian social media platforms have started complying with the Internet Law. By contrast, the most popular social media platforms in Turkey have so far refused to fulfil their obligations, and the first monetary sanction has been imposed. It will be interesting to see how far this refusal to comply will continue, as the sanctions are enhanced in the next phases, in particular the power to impose a severe reduction in bandwidth, which will effectively block the operability of platforms in Turkey.

    For more information please contact Bulut Girgin, Counsel, at

    e-mail

    , and Ceren Ceyhan, Associate, at .