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Recent Developments

The Draft Omnibus Law on Changes to Various Laws (“ Amendment Law “) has been under discussion before the Turkish Grand General Assembly (TGGA) for a while. On Thursday, 13 October 2022, the TGGA adopted the Amendment Law. You may access the adopted text of the Amendment Law here (in Turkish).

What’s new?

The Amendment Law amends several laws, in particular: (i) the Press Law No. 5187, (ii) the Electronic Communications Law No. 5809, and (iii) the Law on the Regulation of Internet Publications and Prevention of Crimes Committed through these Publications No. 5651 (“ Internet Law “). In addition, the Amendment Law introduces the offense of publicly disseminating misleading information to the Turkish Criminal Code No. 5237 (TCC).

Amendments to the Press Law and publicly disseminating misleading information

The Amendment Law expanded the scope of the Press Law and introduced new regulations for news websites. Moreover, Article 29 of the Amendment Law introduces to the TCC the offense of publicly disseminating misleading information. Pursuant to the relevant provision, persons who publicly disseminate false information regarding internal and external security, public order and public health of the country, with the intention of creating anxiety, fear or panic among the public, in a manner conducive to disrupting public peace, will be sentenced to prison.

Amendments to the Internet Law

Article 8 of the Internet Law regulates the access blocking of content related to certain offenses. With the Amendment Law, content that constitutes a crime against the activities and personnel of the Intelligence Agency, as set out in Articles 27/1 and 27/2 of the Intelligence Agency Law, has been included among the catalog crimes in Article 8. Accordingly, relevant authorities may request access blocking and takedown of content due to the relevant offense.

The Amendment Law particularly regulates the activities of social network providers, introducing additional obligations and increased sanctions for social network providers in Additional Article 4. The new requirements are as follows:

• Obligation to appoint a representative in Türkiye and the increased obligations of the representative

The existing obligation of social network providers to appoint a representative in accordance with Additional Article 4 of the Internet Law has been elaborated. In case the representative appointed by social network providers is a real person, this person must be a Turkish citizen residing in Türkiye.

In addition, in case the social network provider’s daily access count is more than 10 million and the representative is not a real person, the representative must be incorporated as an equity company, acting as a branch. Moreover, the representative, whether a natural or legal person, is deemed fully authorized and responsible in terms of technical, administrative, legal and financial matters, notwithstanding the social network provider’s own responsibilities.

• Obligations regarding unlawful content

1. Social network providers must provide the information requested by the competent authorities in investigations related to (i) sexual abuse of children, (ii) the crime of publicly disseminating misleading information introduced by the Amendment Law, (iii) disrupting the unity and territorial integrity of the state, (iv) crimes against the constitutional order and (v) crimes against state secrets.
2. Social network providers are obliged to establish an effective application mechanism in cooperation with the BTK for the removal of hashtags and featured content through a warning method. The social network provider will be responsible for the content, which is published by means of hashtags and a “featured content” tool, if it fails to take down such content promptly and at the latest within four hours upon the notification of the illegal content.

• Additional obligations

1. If social network providers become aware of content that endangers the life and property of individuals, they should provide information on the content and the content provider to authorized law enforcement authorities, in cases where delay may cause issues.
2. Social network providers must take necessary measures for providing services designed for children.
3. Social network providers must act in accordance with the principle of accountability, ensure transparency in the implementation of the Internet Law, provide all information and documentation requested by the BTK, and follow the BTK’s regulations relating to user rights.
4. Social network providers must prepare and submit a crisis management plan relating to extraordinary events affecting public safety and public health to the BTK.

• Scope of bi-annual reports and additional measures

Information on hashtags, algorithms, advertising and transparency policies have been added to the scope of the bi-annual reports that social network providers currently submit to the BTK. Accordingly, social network providers should take measures regarding the following matters and include them in their reports:

1. Treating users equally and impartially
2. Implementing necessary measures in their own systems, mechanisms and algorithms regarding the non-publication of content and hashtags related to offenses under the Internet Law
3. Providing clear, understandable and easily accessible information on the website regarding the parameters used during suggestions to users
4. Taking necessary measures to allow users to update their preferences for content recommendations and restrict the use of personal data
5. Creating and publishing an advertisement library that includes information such as ad contents, advertisers, ad durations, targeted audience, and reached audience

• BTK’s information request and audit authority

With the Amendment Law, the BTK is authorized to request from a social network provider, all explanations relating to the social network provider’s compliance with the Internet Law, including its corporate structure, information systems, algorithms, data processing mechanisms and commercial stance, as well as conduct audits at social network providers’ facilities. Social network providers must provide the requested information and documentation to the BTK within three months.

• Sanctions

• Social network providers may be subject to a fine of up to 3% of their global turnover in the previous calendar year if the following obligations are not met:
  1. For social network providers that have a daily access count of more than 1 million, keeping user data in Turkey
  2. Providing services specific to children
  3. Complying with the BTK’s regulations relating to user rights
  4. Notifying the relevant authorities of content that endangers the life and property of individuals
  5. Submitting the requested information to the BTK in due time
  6. Preparing a crisis management plan relating to extraordinary events affecting public safety and public health
• In case of noncompliance with the content removal and access blocking decisions, measures such as advertisement ban and gradual bandwidth reduction may be implemented. In addition, if administrative fines are not paid within the legal timeframe more than once in a calendar year, an advertisement ban may be issued. Advertisement ban decisions will be announced in the Official Gazette and administrative fines may be imposed on real and legal persons who advertise on social networks in violation of the decision.
• In case the information requested by the judicial authorities is not provided, internet bandwidth may be reduced.
• Social network providers who have already appointed representatives must comply with new changes regarding representatives within six months. In case of noncompliance, advertisement ban and bandwidth reduction measures may be implemented.

Regulations regarding over-the-top services

Article 36 of the Amendment Law defines over-the-top services. Service providers providing over-the-top services must provide their services through a joint stock or limited company established in Turkey. Such companies must obtain an authorization from the BTK, which has been authorized to make regulations regarding over-the-top services and has the authority to impose administrative fines and bandwidth reduction sanctions in case of noncompliance with the regulations regarding over-the-top service providers.

Transition period

Articles 20, 21, 22, 25, 26, 27 and 28 (excluding clauses a and b) that impose obligations on press and internet news sites will enter into force on 1 April 2023. Other regulations have entered into force upon their publication in the Official Gazette.

Social network providers that have already appointed representatives in Türkiye are required to comply with the new regulations regarding representatives within six months following the publication of the Amendment Law.

Conclusion

With the new regulations, many obligations have been introduced for technology companies, internet news sites, social network providers and service providers providing over-the-top services. Considering the effective date of the Amendment Law, the scope of the regulations and the increased sanctions, companies affected by the regulation should examine their liabilities in detail and take the necessary actions.