Written by Yaman Akdeniz, Professor of Law at the Faculty of Law, Istanbul Bilgi University, and co-founder of İFÖD.
The desire to regulate disinformation and other types of so called ‘harmful content’ on the Internet has become a pandemic of its own in the last few years. The European Commission announced on 23 April, 2022 that political agreement has been reached between the European Parliament and EU Member States on the proposal for the Digital Services Act (‘DSA’), which includes new standards for the accountability of online platforms in terms of illegal and harmful content. The European Commission’s proposal from 2020 aims to protect consumers and their fundamental rights online more effectively and also aims to establish a powerful transparency and accountability framework for online platforms. Similarly, the UK Government introduced on 17 March, 2022 the Online Safety Bill in Parliament. The Bill aims to protect children from harmful content such as pornography and limit people’s exposure to illegal content, while protecting freedom of speech. The UK Parliament will have the impossible task of deciding what types of ‘legal but harmful’ content the social media platforms must tackle. Let’s not forget the fact that the European Union imposed restrictions on Russian media sources Russia Today and Sputnik during March 2022 because they ‘have been instrumental in preparing and supporting Russia’s invasion of Ukraine, participating in Russia’s systematic information manipulation and disinformation under the permanent direct or indirect control of the leadership of the Russian Federation’.
Turkey has also joined the bandwagon during the COVID-19 pandemic period and first introduced new regulations amending its Internet law and required all social media platforms to establish legal representation in Turkey during July 2020. That is now followed by a new so-called ‘social media bill’, which, according to media reports, will criminalise the dissemination of content involving disinformation and will also regulate further the responsibility of social media platforms already present in Turkey. This article will assess both the current legal situation involving the social media platforms in Turkey as well as what Turkey intends to change and introduce with the proposed new law.
Legal responsibilities and obligations of social network providers in Turkey
Turkey’s infamous Internet Law No. 5651 was amended with a rushed amendment bill (Law No. 7253) at the end of July 2020. The less than 48 hours of discussions within the Parliament resulted with the new measure of ‘removal of content’ to be added next to the existing ‘access blocking’ measure. The amendments to the law were published in the Official Gazette on 31 July 2020. Among others, the Parliament also defined for the first time that ‘social network providers’ and ‘natural or legal persons that allow users to create, view, or share content such as text, images, audio files, or location on the Internet for social interaction’ would be regarded by law as ‘social network providers’.
A newly-introduced supplementary article 4 instead defined the responsibilities and obligations of the social network providers. Within this context, not every single social network provider comes within the scope of the law. Turkish authorities are only concerned with the more popular and major social network providers as the law refers to ‘foreign social network providers with daily access of more than one million users’. If that is the case, then it is required that such social network providers appoint at least one legal representative in Turkey in order to fulfil a number of requirements including:
- taking the necessary action with regards to the legal notifications to be sent or the requests to be submitted by the Information Technologies and Communication Board (‘BTK’), the Internet Service Providers (‘ESB’) or administrative or judicial bodies;
- responding to the applications to be made by the individuals within the scope of Law No. 5651;
- ensuring that other obligations under Law No. 5651 are fulfilled.
Provisional article 5 of Law No. 5651 provided that social network providers should complete the necessary work to appoint representatives within three months from the date of entry into force of this article (31.07.2020) in order to fulfil their obligations. This period expired on 01.10.2020 and coincided with the publication of a set of Procedures and Principles Regarding Social Network Providers introduced by the decision of the BTK published in the Official Gazette on 2 October 2020.
According to these procedures and principles, the legal representative can be natural or legal persons. If the representative is a natural person, he/she must be a Turkish citizen, and his/her contact details must be easily visible and directly accessible on the website of the social network provider. On the other hand, the legal entities to be established are required to be ‘established in Turkey subject to Turkish laws’.
The new legal provisions also included a set of sanctions in case of non-compliance with the legal requirement to establish legal representation for the social network providers in Turkey. The sanctions included a warning, an initial administrative fine, a second administrative, advertisement ban and finally throttling of the Internet traffic bandwidth (50-90% of the whole traffic) of the social network provider who refuses to establish legal representation in Turkey.
While the first legal representative notification was made by Vkontakte in early November 2020, BTK announced that it imposed administrative fines of 10 million Turkish lire (TRY) on Facebook, YouTube, Instagram, Twitter, Linkedin, TikTok, Dailymotion, Periscope, and Pinterest on 4 November 2020. On 11 December 2020, the same social network providers were fined with an additional administrative fine of 30 million TRY. This triggered first YouTube to announce on 16 December 2020 that the platform would establish legal representation in Turkey. Although the move was criticised by civil society organisations, it had a domino effect on the other platforms and TikTok (8 January 2021), Dailymotion (9 January 2021), Linkedin (16 January 2021), Facebook and Instagram (18 January 2021) all notified BTK that they would establish a legal representative office in Turkey. The silence of Twitter, Periscope, and Pinterest resulted with an advertisement ban on 19 January 2021. Subsequent to the enforcement of the advertisement ban, Twitter (19 March 2021) and Pinterest (09 April 2021) declared that they would appoint a legal representative in Turkey. Based on these declarations, the advertisement bans were lifted.
Legal entities were established by Google, TikTok, Twitter, Facebook, Linkedin and Pinterest subject to Turkish law to represent these social network providers in Turkey, while both Vkontakte and Dailymotion are represented by two separate individuals. Therefore, following the establishment of legal entities and legal representation in Turkey, the bandwidth throttling penalty has not been imposed on any social network provider. The objection filed by the main opposition party for the annulment of this new regulation has not been reviewed by the Constitutional Court at the time of publication.
The establishment of legal representation in Turkey will first result with an obligation to provide a positive or negative response with reasoned decisions in Turkish to any application made by individuals regarding content subject to article 9 concerning personal rights, and article 9/A concerning the right to privacy, of Law No. 5651, within 48 hours at the latest. The social network providers represented in Turkey are also required to enforce the access-blocking and/or content removal decisions issued subject to articles 8 (illegal and harmful to children content) and 8/A (national security and public-order related) of Law No. 5651. Failure to enforce these decisions will result in an administrative fine of a million TRY and the fine shall be increased by one fold for each repetition of the violations requiring administrative fines within a year.
Finally, the social network providers will be responsible for the indemnification of any damages incurred, in case they fail to remove the content or block access to such content within twenty-four hours of receipt of any judge or court issued decision. As of the drafting date of this article, no penalty has been imposed on social network providers.
The new legal provisions also require social network providers represented in Turkey to take the necessary measures to host the data of their Turkey based users in Turkey. Article 12 of the Procedures and Principles Regarding Social Network Providers provides that “in the implementation of this article, priority shall be given to measures to ensure that basic user details and the data regarding particular issues that may be notified by the Board are stored in Turkey.” According to the same article, the “Board shall be notified of the measures taken under this article, as well as the issues notified by the Board, during each reporting period.” No penalties are envisaged within this provision for no compliance. However, the relevant provision lacks clarity and no announcement was made or any information was provided by BTK or by the social network providers about this obligation. As of this writing, it is not clear where the “data of the Turkey based users” are held by the social network providers.
The social network providers established in Turkey are also obliged to prepare, submit and publish bi-annual transparency reports which contain statistical and categorical information on the enforcement of the content removal and/or access-blocking decisions notified to the social network providers. Such transparency reports are required to be published on the website of the social network provider and the provisional article 5 of Law No. 5651 required social network providers to submit their first reports to BTK by June 2021. If the transparency reports are not published, the President of BTK may impose an administrative fine of ten million TRY on the social network providers that fail to fulfil their reporting obligations.
In terms of the first bi-annual report covering the first six months of 2021, Vkontakte, YouTube, Dailymotion, Facebook and Twitter published their reports while TikTok, Linkedin and Pinterest did not. So far as the second half of 2021 reports are concerned, YouTube, Dailymotion, Facebook and Twitter published their reports while Vkontakte, TikTok, Linkedin and Pinterest did not publish their reports. The reports are certainly not uniform and while providing some information and statistical data they are rather limited and do not contain all the required categorical information. Moreover, so far, TikTok, Linkedin and Pinterest did not at all publish any transparency reports although required by law. However, according to publicly available information, no administrative fines were imposed for non-compliance so far. Furthermore, it remains also unclear whether these providers complied with the requirement to prepare forms for complaint in accordance with the requirements of the Law No. 5651. They cannot be easily found or reached or they do not exist at all. None of them has been fined for this breach of the law either. So, what was then the fuss about regulating the social network providers in Turkey and what has been achieved with the July 2020 amendments? Apart from lot of paperwork and shell-companies with very limited liability, nothing seems to be the answer.
Change is on the way
The situation described above was also noticed by President Erdoğan who described social media platforms as one of the main threats to democracy in December 2021 and announced plans to pursue legislation to criminalise spreading fake news and disinformation online. This followed an earlier speech from October 2021 in which he stated that “uncontrolled social media platforms have come to the point of threatening social peace and national security of states.” All these speeches and various other announcements point towards a new legislation which would make the dissemination of “disinformation” and “fake news” criminal offences punishable by up to five years imprisonment. It is reported by BBC Turkish News that with the new provision it is intended to criminalize the “spreading of false information which creates fear and panic in the society or which contains hate speech on social media”. In addition to creating this new specific crime, a more comprehensive Social Media Bill seems to be on its way towards the Parliament. During April 2022, Chair of the Digital Platforms Commission in Parliament and Justice and Development Party deputy H. Yayman stated that “blocking or restricting social media can never be the case. We aim to establish a law similar to the disinformation and anti-fake news law in Germany, the anti-disinformation law in France and the legal regulation on the fight against disinformation in the United States”.
Although the Government’s official goal is to “prevent disinformation and fake news”, the proposals as described in the media does not have the resemblance of the German, Dutch or US laws. First of all, the German model is rather different and does not include access blocking provisions like the Turkish law and does not include criminal sanctions other than fines. The German NetzDG law requires social media platforms to promptly remove “illegal content,” as defined in 22 provisions of the criminal code, ranging widely from insult of public office to actual threats of violence. In other words, Germany does not block access to social media platforms as well as to news websites like Turkey does. On the other hand, the French law only targets election misinformation rather than criminalising disinformation per se. The US approach also intends to counter foreign propaganda and disinformation in particular with regards to elections.
Lack of clarity will continue until the Bill is published and subsequently becomes law. It is argued that the Government is “getting ready” for the next general elections that will take place sometime during 2023 and it is yet another advanced censorship tool to protect the government’s own interests is the real and ultimate goal of the Turkish proposals to criminalize disinformation.
 See generally on disinformation laws, The Poynter Institute for Media Studies, A guide to anti-misinformation actions around the world, at https://www.poynter.org/ifcn/anti-misinformation-actions/ and its related database at https://www.poynter.org/wp-content/uploads/2019/08/Anti-misinfo-guide-aug-19.csv. See further https://libguides.mit.edu/disinfo/policy
 See generally See NPR, “EU law targets Big Tech over hate speech, disinformation,” 23.04.2022 at https://www.npr.org/2022/04/23/1094485542/eu-law-big-tech-hate-speech-disinformation
 See Digital Services Act: Commission welcomes political agreement on rules ensuring a safe and accountable online environment, 23.04.2022, at https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2545
 See https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020PC0825&from=en. See further Europe fit for the Digital Age: new online rules for platforms at. https://ec.europa.eu/info/digital-services-act-ensuring-safe-and-accountable-online-environment/europe-fit-digital-age-new-online-rules-platforms_en. Note also EU Tackling online disinformation at https://digital-strategy.ec.europa.eu/en/policies/online-disinformation
 See https://www.gov.uk/government/news/world-first-online-safety-laws-introduced-in-parliament. See the text of the Online Safety Bill at https://publications.parliament.uk/pa/bills/cbill/58-02/0285/210285.pdf
 See EU Restrictions on Russian State-Owned Media at https://ec.europa.eu/info/sites/default/files/business_economy_euro/banking_and_finance/documents/faqs-sanctions-russia-media_en.pdf. For a critical assessment, see Dirk Voorhoof, “EU silences Russian state media: a step in the wrong direction,” Inforrm’s Blog, 08.05.2022, at https://inforrm.org/2022/05/08/eu-silences-russian-state-media-a-step-in-the-wrong-direction-dirk-voorhoof/
 Official Gazette, 31.07.2020, no. 31202.
 Article 2(s) of Law No. 5651.
 Supplementary Article 4(1) of Law No. 5651.
 Provisional article 5(1)(a) of Law No. 5651.
 Information Technologies and Communication Board, 2020/DK-İD/274, 29.09.2020.
 BTK, Article 6(1) of the Procedures and Principles Regarding Social Network Providers.
 BTK, Article 6(2) of the Procedures and Principles Regarding Social Network Providers.
 Supplementary article 4(2) of Law No. 5651.
 See “YouTube precedent threatens free expression,” 18.12.2020 at https://ifade.org.tr/en/press-releases-announcements/youtube-precedent-threatens-free-expression/; “TikTok’s compliance with social media law enables expansion of censorship regime,” 09.01.2021 at https://ifade.org.tr/en/press-releases-announcements/tiktoks-compliance-with-social-media-law-enables-expansion-of-censorship-regime/; “Twitter becomes latest company to comply with repressive social media law,” 24.03.2021 at https://ifade.org.tr/en/press-releases-announcements/twitter-becomes-latest-company-to-comply-with-repressive-social-media-law/
 See https://twitter.com/ofatihsayan/status/1380454617146925059
 BTK Decision No. 4202, 19.01.2021 (Pinterest); BTK Decision No. 3768, 15.01.2021 (Twitter); BTK Decision No. 3769, 15.01.2021 (Periscope), Official Gazette, 19.01.2021, no. 31369.
 See https://www.tiktok.com/legal/turkey-social-media-law-5651?lang=tr.
 For Facebook, see https://www.facebook.com/help/118930960130870/?helpref=related, and for Linkedin, see https://www.linkedin.com/help/linkedin/answer/129169.
 Supplementary article 4(3) of Law No. 5651.
 Supplementary article 4(7) of Law No. 5651.
 Supplementary article 4(8) of Law No. 5651.
 Supplementary article 4(5) of Law No. 5651.
 Information Technologies and Communication Board, 2020/DK-İD/274, 29.09.2020.
 BTK, article 12(2) of the Procedures and Principles Regarding Social Network Providers.
 Supplementary article 4(4) of Law No. 5651.
 Provisional article 5(1)(b) of Law No. 5651.
 Supplementary article 4(6) of Law No. 5651.
 See Aljazeera, “Turkey’s Erdogan says social media a ‘threat to democracy,’” 11.12.2021, at https://www.aljazeera.com/news/2021/12/11/turkeys-erdogan-says-social-media-a-threat-to-democracy
 See Hürriyet, “Disinformation on social media threatens democracy: Erdoğan,” 22.10.2021, at https://www.hurriyetdailynews.com/disinformation-on-social-media-threatens-democracy-erdogan-168820
 See “New disinformation law will be soon announced, Turkish official says,” Daily Sabah, 17 April, 2022 at https://www.dailysabah.com/politics/legislation/new-disinformation-law-will-be-soon-announced-turkish-official-says