The Grand National Assembly of Türkiye passed a long-awaited bill titled “The Law Amending Press Law and Other Laws” on 13 October, amending a set of laws related to media, internet news sites, social media, and over-the-top services (OTTs). The law has been widely debated in the national and international fora, mostly because “spreading disinformation” is added as a separate criminal act punishable by up to three years imprisonment under the Turkish Penal Code and Penal Procedure Code. However, the law also includes very significant changes for social networks and OTT providers. In this piece, I will focus on aspects of the amendments that concern social media and OTT services.
Stricter Social Media Regulations
The bill is widely known as the Internet Law or Law No: 5651 to avoid using its full name, “Law on Regulation of Publications on the Internet and Fight Against Crimes Committed Through Such Publications” (İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele Edilmesi Hakkında Kanun). It was amended in 2020 to define “Social Network Providers” (SNP) with a small set of obligations. With the current amendments, existing regulations are detailed while new obligations are introduced.
Representation in Türkiye
Previously, SNPs accessed more than one million times per day in Türkiye were obliged to designate a representative and notify the telecommunications/ICT regulator, Information and Communications Technologies Authority (BTK). In practice, social media companies designated legal personalities such as legal offices as their representatives in Türkiye. The current amendment brought stricter requirements, meaning this solution does not apply to big social media companies.
Previously, the law stipulated that if the representative is a real person, they must be a Turkish citizen. This has been furthered now with a new requirement of also being resident in Türkiye. Moreover, if daily access from Türkiye is more than 10 million and the representative is a legal personality, this representation must be directly established by the social network provider as a branch in Türkiye. These provisions are clearly intended to force the biggest social media companies to have direct representation in Türkiye, but smaller social network providers will still have to comply with other regulations.
Social network providers accessed more than one million times per day in Türkiye were previously obliged to submit biannual reports to BTK about take down and blocking requests, as well as their execution. The scope of biannual reporting is widened to include the following information:
- Algorithms for hashtags
- Algorithms for up-ranked or downranked content
- Advertisement policy
- Transparency policy
- Advertisement library, which will be set by the SNP and publicly available.
Moreover, social network providers need to prepare crisis plans for extraordinary cases where public safety and public health are at stake and communicate this to BTK. They should also provide within three months any information requested by BTK on corporate structure, IT systems, algorithms, data processing mechanisms, and commercial behaviours.
Finally, SNPs need to comply with prosecutors that investigate crimes such as sexual abuse of children, disinformation, or crimes against Constitutional order by sharing the data requested.
Protection of Children
Regarding child protection, a new provision states that social network providers will take necessary measures to offer specialised services for children. “Taking necessary measures” is not a direct instruction, and it is understood that the scope of the measures could be determined by the mutual discretion of the social media company and the regulator.
SNPs are obliged to establish complaint mechanisms to take down hashtags and up-ranked content in cooperation with BTK. When it comes to unlawful content by third parties, an SNP becomes directly responsible four hours after it is notified about the unlawful content. SNPs also have to share information with law enforcement authorities when they become aware of any content that could put lives or properties in danger.
Regarding non-compliance with the take down requests, a phased sanction plan will be implemented:
- Firstly, the social media company is banned for six months from receiving advertisement revenues from taxpayers in Türkiye
- At the same time, with the approval of a Court, the bandwidth of the social media company could be throttled by 50%.
- If the non-compliance continues after first throttling for 30 more days, with the approval of a Court, the bandwidth of the social media company could be throttled by 90%.
Moreover, BTK may impose administrative fines of up to 3% of the previous year’s global turnover. In cases where an SNP does not provide the information requested by a prosecutor, the Court may decide to throttle the bandwidth by 90%.
With the new amendments, new definitions of over-the-top service and over-the-top service provider are introduced to the Electronic Communications Law, numbered 5809. An OTT service is defined as “interpersonal electronic communication services in the scope of voice, text or visual communication, that are offered via a publicly available software to subscribers and users that have internet access, independent of operators or provision of internet service”. Therefore, it could be said that even though the concept of OTT may include a vast variety of online services, the potential targets of the new regulation are interpersonal communication services, such as online messaging and VoIP services. It could be said that this is somewhat similar but beyond the definition of a “number-independent interpersonal communication service” in the EU’s European Electronic Communications Code. BTK may clarify the scope through secondary legislation.
Other provisions on OTTs stipulate that OTT service providers can offer services in Türkiye through joint stock or limited liability companies that are established in Türkiye and duly authorised by BTK. The OTT service providers may be deemed “operators” by BTK for certain rights and responsibilities set in the Electronic Communications Law. In cases of non-compliance, an administrative fine of up to TRY30 million could be imposed. Furthermore, traffic bandwidth on non-compliant or non-authorised OTT service providers could be throttled up to 95%.
The law will enter into force on the day of publication in the Official Gazette. Some exceptional provisions take effect in April 2023, but these concern press regulations.
Regarding social media, the law says that SNPs are obliged to comply with BTK regulations concerning user rights. Currently, BTK has a consumer rights regulation for the electronic communications sector. It is not clear whether there will be a separate regulation on social network user rights or if the existing consumer rights regulation will be enlarged.
Regarding OTT services, BTK may publish secondary legislation to set and/or clarify the details of the scope, authorisation procedure, and rights and responsibilities of OTT service providers.
Social media and OTT companies that operate or are planning to operate in Türkiye should follow developments closely to avoid any disruption in their operations.