The Amendment on TurkIsh “SocIal MedIa Law” and RepercussIons wIthIn the Legal Sphere
A Legal Memorandum by
Prof. Dr. Devrim Güngör (Ankara Bar)
PhD(c) Ozan Çorbacıoğlu (Ankara Bar)
Law no. 5651 – publicly known as the “Social Media Law” has been amended on 29.07.2020 by the hands of the Turkish Parliament. Simply, there are some new legal elements and procedures introduced by the amendment which shall be scrutinized and understood by any social media provider/company/platform in order to proceed with the service without receiving monetary fines in bulk.
At the first glance, there are certain indicators that the Turkish legislator desires a clear increasement in the severity of the penalties regarding the wrongdoings of the social media platforms. Moreover, the desire to “enforce” aforementioned penalties is vivid as well – which was problematic due to the legal gaps prior to the amendment. As the sum; to the detriment of social media platforms, the new law is cut and dried, as the phrase goes.
This memorandum will explain the essential duties and responsibilities of the social media platforms as brought by the amendment. The new legal paradigm is delineated under 4 main topics. The first 3 topics are; “definition of social media provider”, “obligation to appoint a representative” and “obligation to store data in Turkey”. First 3 topics are somewhat clearer and presents certain boundaries compared to the last topic. The last topic lies between the lines of the amendment yet probably will pose the greatest trouble for social media platforms, in terms of legal and financial requirements stated under the “requests of removing the content”.
A. DefInItIon of SocIal MedIa ProvIder
To start with, prior to the amendment, there are certain incompetent terms stated in Law no. 5651 as an attempt to create a legal definition for social media platforms. These terms stood vague and abstract without the ability to create legal boundaries. Without any further detail, these terms are; “access provider”, “content provider” and “mass utilization provider”.
The amendment brought a new terminology, without abolishing the aforementioned ones. Here, the legal aim is to create a clear portrait in which social media platforms are separated by the other providers on internet. The obligations that will be explained in further chapters will be applicable for social media platforms only. Therefore it is immensely important to comprehend if a platform will be regarded as a social media platform or not.
The translation of the new term of “social media provider” as stated in Article 2(1)(s) is;
“Social media provider: Natural or legal persons that enable users to create, view or share contents like text, image, voice, location for the purpose of social interaction.”
At the first glance, the definition creates no doubt on if the conventional social media platforms will be included or not. Examplary; platforms like Facebook, Twitter, Instagram, YouTube and TikTok clearly stand under the umbrella of this definition. However, because of the broad formulation of the definition, some other platforms and applications can be deemed as included as well, such as WhatsApp, Skype, Tinder or Telegram.
To explain the broadness by an example, WhatsApp is an application that is used for instant messaging. In an ideal legal world, it is clear that such application cannot be deemed as a social media platform. However, in the terminology given above, the wording “for the purpose of social interaction” is so extensive that even such application can be included in the list. At the end of the day, users do view or share such contents on WhatsApp for the purpose of social interaction, which fits the definition. The same concern is applicable for any other platform on the world; Turkish judiciary might consider all of them as a social media platform.
Since the terminology is vague, sooner or later, Turkish judiciary will concretize the boundaries of the term “social media provider”. Here, for Turkish judiciary, the most important legal source is the German Social Media Law (Netzwerkdurchsetzungsgesetz) – not only because German and Turkish law are closely connected to each other but also because German Social Media Law was held up as an example during the preparation of the new amendment in Turkish Social Media Law. To give more context, in Turkish constitutional law systematic, the parliamentary debates (both the speeches on the stand and speeches in the law-maker commission) are legit legal sources for the judiciary on the interpretation of the laws.
German Social Media Law offers two main qualities for a platform to be considered as a social media platform; providing service for the aim of profit and allowing users to share contents publicly. Such qualities create a clearer concept of what social media provider is. However, scholarly debates still criticise such delineation, since platforms like Netflix Party or Spotify lists still fits into the definition of social media provider (as they allow public content sharing) even though they clearly are not a social media platform.
To sum up, currently, the social media provider definition is highly vague and abstract. Turkish judiciary will concretize the definition in upcoming months, most probably based on the provisions from German law. It is safe to say that conventional platforms will definitely be included under the umbrella. Our prediction on other platforms is; instant messaging platforms will not be included thus will not possess the obligations stated in the amendment. As of August 2021, there are a total of 13 platforms officially listed as social media provider; Facebook, Instagram, Twitter, Google, Youtube, Microsoft, Linkedin, Bing, DailyMotion, Yandex, Ekşisözlük, Pinterest and Amazon.
B. OblIgatIon to AppoInt a RepresentatIve
With the Additional Article 4 of the amendment, from October 2020 and onwards, social media providers with more than 1 million daily users from Turkey have the obligation to appoint a representative in Turkey. This representative can be a natural or a legal person, and must be a Turkish citizen if a natural person is appointed by the social media provider. This representative has several duties; responding to subpoenas, notifications and requests made by citizens, courts and state organs, and more. This representative shall organise and participate in all legal procedures regarding the regulations on social media, acting as the outpost of the social media platform in question within Turkey.
Unfortunately, there are no more details in the amendment regarding the qualities and characteristics of the representative. Currently, the Social Media Law presents no regulation on the taxation, personnel regime, financial liability, allocatable capital threshold, legal or criminal responsibilities of the representative. It is expected that a communique that will be issued by the President of the Republic or an administrative organ shall fill in the blanks.
Simply, the aim of this obligation is to ensure the enforcement of the court rulings and administrative fines. Hitherto, social media providers do not have a legal entity on the soil of Turkey which hinders the judicial/administrative authorities’ ability to enforce fines. With the amendment, social media providers will (must) have a legal existence in Turkey which will be as a bridge to the social media provider itself.
The important part is, the provision to appoint a representative offers a thunderous penalty scheme if it is neglected, that could potentially result in blocking the access to the platform and millions in fines. As remarked in Additional Article 4(2), it has 5 steps that offers more severe penalties in each one;
|Step 1- The Agency sends the first notification to the social media provider that did not appoint a representative. If the notification is not honoured in 30 days and a representative is not appointed, the first administrative fine is issued; 10 million Turkish Lira.|
|Step 2- Starting from date of the notification of the first administrative fine, the social media provider has 30 more days to appoint a representative. If the obligation is not fulfilled again, second administrative fine comes along; 30 million Turkish Lira.|
|Step 3- Starting from date of the notification of the second administrative fine, the social media provider has been given 30 more days to appoint a representative. If the obligation is not fulfilled again, The Agency forbids all Turkish taxpayers by placing advertisements on the social media provider’s website in question. Not only placing new advertisement is forbidden for taxpayers, but also signing new contracts and transferring money/funds is forbidden as well. Under the term “Turkish taxpayers”; all of the Turkish companies, businesspersons and entities are included – it practically means nearly zero advertisement revenue from Turkey for the social media provider.|
|Step 4- Starting from the date of the decision of advertisement ban, the social media provider has 3 more months. If the obligation to appoint a representative is not fulfilled within 3 months, the Chairperson of the Agency can issue a request from the criminal courts to limit social media provider’s internet traffic bandwidth by 50%. This simply means, the website or application in question can only carry half of the data – a practical slow-down in the service. One shall keep in mind that the criminal procedure in this request is fairly easy, the Chairperson can obtain the decision of the criminal court within hours.|
|Step 5- Within 30 days by the limiting decision of the criminal court, if the social media provider still lacks a representative, a second request can be issued by the Chairperson; this time the criminal court can limit the internet traffic bandwidth by 90%. Obviously, it becomes an almost access denier.|
In all steps, there is a chance to appeal and pause the process by legal means; first three steps in administrative courts and last two steps in criminal courts with various legal ways and methods. However, at the end of the day, the provision is palpable; a social media provider shall eventually appoint a representative or unfortunately will be almost blocked in Turkey. Even if a provider reached to 5th step, appointing a representative will abolish the bandwidth limitation decisions and a part of the administrative fines; the website or the application will function properly.
Based on our legal experience, considering the legal procedures regarding the penalty scheme above, reaching Step 5 shall take at least 7 or 8 months.
C. OblIgatIon to Store Data In Turkey
In the amended text, Additional Article 4(5) portraits an interesting legal norm; it highlights an obligation yet the penalty for not following the norm is not present. The provision can be translated as followed;
“The domestic or foreign social media provider that gives access to more than 1 million users from Turkey shall take necessary precautions for storing these users’ data in Turkey.”
Simply, the legislator asks social media platforms to store the data of the users from Turkey in the servers/hard-discs/cloud that are placed in Turkey. The aim is to effectively use this data for criminal prosecutions and trials. Hitherto, as these data were not positioned in Turkey, even if a prosecutor or a court orders for a search and seize decision, it could not be enforced as they are stored abroad.
With the amendment, the competent judicial authorities will be able to use the data in question based on their own motions. Turkish Criminal Procedure Code Article 332 allows these judicial authorities to “ask for relevant information”; here, the respondent is the representative that was appointed by the social media platform. If the representative does not follow the motion, he/she shall be indicted by professional misconduct; can be penalized by 3 months to 2 years of imprisonment.
D. Requests of RemovIng the Content
This topic is the most important aspect of the amendment, stands as a long haul so to say. Social media platforms will have to put in a lot of labour to overcome this obligation. As mentioned before, the topic lies between the lines and is highly detailed. Neither the Turkish society nor the legal/scholar habitus paid attention to this topic, yet.
To start with, the amendment brought a provision that looks simple at the first glance. The translation of Additional Article 4(3) is;
“The social media provider that gives access to more than 1 million users from Turkey shall respond to the requests made by people under Articles 9 and 9/A at most in 48 hours, either with a negative or positive reply. Negative replies shall be justified.”
It is obvious that users can request something under Articles 9 and 9/A. Keep in mind that these articles are formulated lengthily, so the translation below covers the foundations of the provisions;
“Article 9- Natural or real persons and institutions which argue that the existing content on the internet violates their individual rights can directly request the removal of the content by the content provider or access provider, via the method of warning. Also, these persons can request the removal of the content or denying the access from the Criminal Judge of Peace.”
“Article 9/A- Persons who argue that the existing content on the internet violates their right to privacy can directly ask the Agency to impose the measure of denying the access.”
So, the persons that feel violated by the content on the social media can address this issue to several places – directly to the social media provider, criminal judge or the Agency. The legal background of this “violation” is not clear in the amendment; a political debate, a painting, innocent comments on a Facebook page, funny tweets or a broadcast from refugee camps can be a source for such violation. A content might violate only one certain person’s rights or can violate the rights of an ethnic/religious group. A content might be non-violating now but can later become a violating one depending on the socio-political changes in Turkish society. All of these possibilities can go on.
The important part is; as seen in Article 9, persons can directly request the removal of the content from the social media platform itself. An accurate assumption can be made here, based on our experience on Turkish legal sphere and sociological realities of Turkey; people will definitely not choose the path of going to criminal judge or the Agency to remove the content. These two options will take a longer amount time, preparation of the petition requires more labour for a citizen and judicial expenses are unwanted. Also, the trust towards administrative and judicial organs are relatively low amongst the society. On top of that, since contact info of the representative of the social media platform shall be reached by a citizen in a convenient way (as the regulation asks) and the request for removal from the social media platform is much more simpler in procedural terms, it is safe to assume that a regular Turkish citizen, at least 9 out of 10 times, will directly request the removal by the social media platform. It is assumed that the representative will become almost like a mediator or an arbitrator, acting as a compliance authority because of these requests.
To put It In more concrete terms, what should a socIal medIa platform do?
For every single request for the removal of the content, the social media platform shall scrutinize the content in question and give a decision to remove or not remove it from the internet. If the request from the person is denied, a justification in the format of a petition shall be sent back to the requester.
This means, social media platforms need the labour of lawyers, precisely criminal lawyers who are proficient in individual rights, certain crimes and criminal procedure. This group of lawyers shall take every single request in consideration and deliver a decision (to remove or not to remove) which must be aligned with several legal sources; for example, the standards of Turkish criminal law, precedents of European Court of Human Rights, the Constitutional Court of Turkey and the Cassation Court of Turkey, legal principles in criminal law doctrine and so on. The standards of the potentially violated “individual rights” in question lie between several transnational legal findings. At the end, the requests shall, one by one, be answered by the social media platform via the hands of the lawyers based on their knowledge on individual rights and the violation doctrine.
If a social media platform lacks this system and fails to give responses or take actions regarding the requests, the penalties are immense. For each failed request, the administrative fine is 5 million Turkish Lira. It is assumed that there will be thousands of requests, if not millions per month by Turkish citizens, the potential of the sum of the penalties is humongous.
Another aspect is, as stated in the amendment, a social media provider has only 48 hours to give a response to such request. If the upper limit of 48 hours has passed, the administrative fine stated in the paragraph above shall be applied. Needlessly to say, it is a task that needs proper haste.
If a social media provider declines the request and sends the negative respond back to the requester, the requester has the right to take this decision to a criminal judge, which will rule on the issue. If such action is activated by the citizen, a legal labour before the criminal court is also needed by the social media platforms. Also, based on the certain provisions of Turkish Criminal Procedure Code, the decision of the criminal court in question can be “appealed” – meaning another criminal court will review the decision.
What if the social media platform accepts all of the requests and removes contents? Rendering the psychological and sociological state of mind of Turkish society gives a clear-cut answer here; there will be no legal consequences per se on behalf of the social media platform, yet an incredible amount of the content will be removed from the internet. The society will roll with the acceptance of the requests trend and the final portrait will strike as an auto-censuring society.
As a result, social media platforms shall lean on ideal legal standards in this issue. Accepting or declining all of the requests is not rational, as explained above. Someone must hastily separate the contents to remove and the contents to keep. Interestingly, this topic in the Social Media Law still goes unnoticed. However, it is obvious that responding to the requests of the removal of content is the most problematic obligation for social media platforms in Turkey.
 Original name of the Law no. 5651: “İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele Edilmesi Hakkında Kanun”.
For the full text in Turkish: https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5651.pdf
 Original version: “Sosyal ağ sağlayıcı: Sosyal etkileşim amacıyla kullanıcıların internet ortamında metin, görüntü, ses, konum gibi içerikleri oluşturmalarına, görüntülemelerine veya paylaşmalarına imkân sağlayan gerçek veya tüzel kişileri,”.
 Information Technologies and Communication Agency; the administrative authority that regulates this sector, it is an official state organ. Its’ name in Turkish is “Bilgi Teknolojileri ve İletişim Kurumu”, or known as BTK.
 Who is directly appointed by the President of the Republic.
 Turkish Criminal Code Article 257, denomination of the crime in Turkish is “görevi kötüye kullanma”.