Author: Hazel Coskun Baylan
Introduction
The Internet has become a more regulated environment after the Act on Internet Broadcasting and Combating Crimes Committed by Internet Broadcastings numbered 5651 (“Internet Broadcasting Act”) was amended by the Act for the Amendment of the Internet Act numbered 7253 (“Amendment Act”). Strict regulations, such as the requirement to appoint a representative in Turkey, and the on-soil requirement to store the data of the users, in Turkey, in a datacenter physically located within Turkish borders, are designated under the Amendment Act for social network providers with daily access of more than one million users, which entered into force on 1 October 2020.
Appointment of Representative
A social network provider is defined under the Internet Broadcasting Act as real and legal persons that enable their users to create, view and share content, such as text, image, voice and location, through the internet for social interaction purposes. As per Additional Article 4 of Internet Broadcasting Act, which was regulated by the Amendment Act, foreign social network providers are required to designate at least one representative in Turkey in order to respond to, and carry out, the notifications and requests made by the Information and Communication Technologies Authority ("ICTA"), the Union of Access Providers, and other administrative and judiciary authorities within the scope of the Internet Broadcasting Act, and to ensure that the obligations as set forth under the Internet Broadcasting Act, are fulfilled. In the event of the appointment of a real person representative, the representative must be a Turkish citizen.
If the foreign social network provider does not comply, the following sanctions will be applied, respectively:
- If the representative is not appointed within 30 days after being notified by the ICTA, an administrative fine of 10 million Turkish Liras (app. USD 1.4 million) shall be imposed on the social network provider;
- If the social network provider does not appoint a representative within 30 days following the service of the first administrative fine of 10 million Turkish Liras (app. USD 1.4 million), another administrative fine of 30 million Turkish Liras (app. USD 4.2 million) shall be imposed on the social network provider;
- If the social network provider does not fulfil its obligation as to the appointment of a representative within 30 days following the service of the second administrative fine of 30 million Turkish Liras (app. USD 4.2 million), an advertisement ban shall be imposed, by prohibiting Turkish taxpayers (either real or legal persons), to place an advertisement with the social network provider. No new contract may become effective, and no money transfer may be made within this scope.
- If the social network provider does not appoint a representative within three months following the date of the advertisement ban, the President of the ICTA may apply to the Criminal Judge of Peace to limit the social network provider’s internet bandwidth by 50%.
- If the social network provider still does not appoint a representative within 30 days following the implementation of the resolution of the judge, final sanctions shall be imposed, limiting the social network provider’s internet bandwidth by 90%. That being said, in its second resolution, the judge may determine a lesser rate by considering the qualifications of the service provided, however the rate may not be lesser than 50%.
The Amendment Act designates a simplified procedure to serve administrative fines upon foreign addresses. Accordingly, an email notification, or other communication tools, shall be deemed as notification served within the scope of Notification Act numbered 7201. The notification is deemed to be served after 5 days from the date of the notification.
If the foreign social network provider fulfills its obligation by designating a representative in Turkey, only one fourth of the imposed administrative fines shall be imposed, the advertisement ban shall be removed, and the resolutions of the judge shall be deemed ipso facto void.
VKontakte, YouTube, Dailymotion, and TikTok, have already appointed, or have decided to appoint, a representative in Turkey. Advertisement ban for those social network providers that did not determine a representative was entered into force on 19 January 2021. Just before the advertisement ban became effective, Facebook, Instagram, and LinkedIn, announced that they will also designate a representative in Turkey.
On the other hand, pursuant to the decisions of the ICTA, published in the Official Gazette dated 19 January 2021 and numbered 31369, placing advertisements and making money transfers by real and legal persons, who are resident taxpayers in Turkey, to Twitter, Pinterest, and Periscope, is banned, since they failed to fulfill the obligation to appoint a representative.
On-Soil Storage of Data
Another obligation regulated for the social network providers is to store the data of their users in Turkey, in a datacenter physically located within Turkish borders. Accordingly, local and foreign social network providers with a daily access of more than one million users shall take necessary measures for storing the data of their users in Turkey in a datacenter physically located within Turkish borders. Contrary to the obligation on appointment of a representative mentioned, above, no specific sanction is designated for the omission of this obligation. This obligation of on-soil storage of user data is a potential burden on the social network provider and will take longer to fulfill. Currently, there is no information as to whether any social network providers have started to address this topic.
Conclusion
Social network platforms have encountered strict obligations and measures, such as appointing a representative, and storing the data of users in Turkey in a datacenter physically located within Turkish borders through the Amendment Act. Whereas, Vkontakte, YouTube, Dailymotion and TikTok, have decided to designate a representative in Turkey after the Amendment Act became effective, Facebook, LinkedIn, and Instagram, announced their decisions to determine a representative just prior to being faced with the advertisement ban. On the other hand, Twitter did not make any declarations about appointing a representative. In the event that Twitter does not appoint a representative, the sanctions following the advertisement ban will be decreased internet bandwidth. As this might affect access to, and usage of, Twitter, its impact on the user experience will be seen in the following days.
