The Monthly Newsletter

August 2020

Obligations Introduced by the Law No. 5651 Law on Amendment the Law About Regulation of Publications Made on the Internet and Fight Against Crimes Committed Through Publications

  The Law No. 5651 on the Amendment of the Law on the Regulation of Publications Made on the Internet and Fight Against Crimes Committed Through These Publications ("Internet Law") was published in the Official Gazette No. 31202 on 31/7/2020. With the amendments that have occurred, large-scale regulations have been made and sanctions have been imposed, which are closely concern to content providers, hosting providers, access providers and social network providers, aiming to minimize illegal content on the internet. As explained in Article 2 of the Internet Law, natural or legal persons who produce, modify, provide and provide users with access to the internet environment are within the scope of herein law. Therefore, the changes, obligations and sanctions introduced concerns all internet users and all persons working in this sector.
There are serious sanctions stipulated in case of violation of the responsibilities and obligations imposed on social network providers, hosting providers and content providers with the articles added and amended to the Internet Law on 31/7/2020:

Violation of Obligation to Inform:
  
Content, location and access providers are obliged to keep their introductory information on their own internet environment and up-todate within the framework of the principles and procedures determined by the regulation. Otherwise, an administrative fine of between 2,000 TL-50,000 TL is imposed.

Violation of Representative Requirement:
In the absence of a representative, the Information Technologies and Communication Authority ("ITCA") may notify the foreign social network provider and request the fulfillment of the obligation within 30 days. If the foreign social network provider cannot appoint a representative within 30 days and does not inform ITCA, first of all,
ITCA imposes an administrative fine of 10,000,000 TL. Subsequently, if the foreign social network provider fails to appoint a representative within 30 days after the above administrative fine is applied and does not notify the ITCA, the ITCA may impose an additional administrative fine of TL 30,000,000 TL. Following, if the foreign social network provider does not appoint a representative within 30 days of the second administrative fine and does not notify the ITCA, ITCA may prevent natural and legal persons from advertising, making agreements, or transferring money to the relevant social network provider. If the foreign social network provider fails to appoint a representative and does not notify the ITCA within 3 months after the advertising ban, the ITCA may apply to the court of first instance and request that the provider's internet bandwidth be reduced by half. If the provider is unable to appoint a representative within 30 days after the implementation of the first bandwidth reduction, the ITCA will be able
to severely restrict internet access and restrict its activity by the court decision.

Obligations of Hosting Provider:

The amendments greatly increase the ranges of administrative fines imposed on hosting providers who do not notify ITCA of their assets with a hosting notification or do not comply with the terms specified for hosting providers under the Internet Law. These hosting providers host the data of their customers on their own servers and
these servers are located in the Data Processing Centers, and the administrative fines to be paid in case of not fulfilling the obligations of the Internet Law are determined as between 100,000 TL - 1,000,000 TL.

Content Removal Decisions and Response Time Violation:

ITCA can request removal of content that has been found to be illegal and can impose an administrative fine of 5,000,000 TL on all providers who do not respond within 48 hours. With the amendment to the 8th article of the Internet Law, the decision to block access and remove the content for the publications with sufficient suspicion as to constitute a crime such as encouragement to suicide, sexual abuse of children, etc, should be answered within 4 hours at the latest from the moment of notification.
Access providers who do not respond to the decision to remove unlawful content are punished with a judicial fine from 500 days to 3000 days. If the decision to remove the content given as an administrative measure and / or block access is not fulfilled, the location and the access provider are fined between 10,000 and 100,000 TL. Finally, if the decision is not fulfilled within 24 hours after this sanction, the President of the ITCA may decide to cancel the authorization of the access provider and terminate its activity.

Exercising the Right to Be Forgotten:

According to the definition of the Supreme Court, the right to be forgotten is expressed as the right to ask for the negative events in the digital memory to be forgotten after a while, to delete and prevent the dissemination of personal data that others do not want to know, unless there is a superior public interest. With the amendment to Article 9 of the Internet Law, the right to be forgotten has been regulated as a right to be obtained by applying to the criminal judge of peace. The
personal data of the person within the scope of the right to be forgotten must be deleted, including all connections, ie copies of personal data. Otherwise, in line with the General Data Protection Regulation ("GDPR") and the Personal Data Protection Law ("PDPL"), as this situation is a violation of the protection of personal data, those
concerned will be punished in accordance with article 17 of the PDPL. In accordance with the decision of the Personal Data Protection Board dated 23/06/2020 and numbered 2020/481, it has been ruled that people can claim their right to be forgotten against search engines. However, in a decision of the European Union's higher court, it has been determined that Google is not required to enforce its right to be forgotten globally, thus constituting an exception to the above obligation.

The provisions that set out the definition of the social network provider, set out the obligations, and determine and change the sanctions we have explained in detail above, will come into force on 01/10/2020, and the rest of the changes described below will be effective as of 31/7/2020. In the light of these important changes, it is
crucial that the content providers, hosting providers, access providers, social network providers and even internet users pay attention to the
time limits and obligations imposed. As of 1/10/2020, social network providers from abroad are required to perform the necessary process and appoint a representative.
 

Dilara ATILGAN Zeynep KILIÇ