INFORMATION NOTE ON THE DECISION OF THE INFORMATION TECHNOLOGIES AND COMMUNICATIONS BOARD DATED 28/03/2023 AND NUMBERED 2023/DK-İD/119
With the decision dated 28/03/2023 published by the Information and Communication Technologies Authority (“Authority”), regulations have been made regarding the issues that social network providers operating in Turkey must comply with. The term “social network provider” refers to “real or legal persons who enable users to create, view or share data such as text, image, sound, location, etc. on the internet for social interaction purposes”. The relevant regulations entered into force as of 01.04.2023.
1. DETERMINATION OF REPRESENTATIVE
A foreign social network provider with more than one million daily accesses from Turkey is obliged to designate at least one authorised natural or legal person as its representative in Turkey. In the case of a natural person, the representative must be a resident of Turkey and a Turkish citizen; in the case of a legal entity, the representative must be established in Turkey and have acquired legal personality in accordance with Turkish legislation.
The representative of the social network provider with more than ten million daily access from Turkey is fully authorised and responsible in technical, administrative, legal and financial aspects, without prejudice to the responsibilities of the social network provider. If the representative of a foreign social network provider with more than ten million daily access from Turkey is a legal entity, the representative must be a branch established as a capital company.
a) The social network provider shall have a trade name that includes the distinctive phrase of the title of the social network provider and the province where the capital company was established,
b) The shares are wholly owned by the social network provider,
c) Stating in the articles of association that it is within the social network provider and affiliated to the social network provider, ç) Having a capital of at least one hundred million Turkish Liras,
d) The capital company notified to the Authority by the social network provider, which meets the conditions of clearly stating in the company agreement that it is fully authorised and responsible for technical, administrative, legal and financial aspects by the social network provider, is accepted as a representative
Duties of the designated representatives;
Fulfilment of notifications, notices or requests to be sent by the Institution, the Association, judicial or administrative authorities,
Responding to the applications to be made by individuals within the scope of the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications (“Law”),
Fulfilment of the reporting obligation,
Fulfilment of the responsibilities and obligations of the social network provider arising from being a content or hosting provider,
Ensures the fulfilment of other obligations under the Law.
Social network providers with more than one million daily access from Turkey are obliged to respond to applications made by individuals regarding the content within the scope of Articles 9 and 9/A of the Law. The social network provider shall respond to the applications positively or negatively within forty-eight hours at the latest from the date of the application, provided that the reason is stated. Applications made in Turkish must be answered in Turkish.
2. DUTIES OF SOCIAL NETWORK PROVIDERS
a) To include the contact information of the representative, b) To report, c) To create an advertisement library, d) To provide differentiated services specific to children, e) To host the data in Turkey, f) Establishing an application mechanism, g) Protect user rights, h) Creating a crisis plan.
Reporting: Social network providers with more than one million daily access from Turkey shall submit reports prepared in Turkish containing statistical and categorical information to the Agency on a semi-annual basis. 1 January – 30 June reports are sent in July, 1 July – 31 December reports are sent in January.
Advertisement Library: The advertiser, the content of the advertisement, the type of the advertisement, the period during which it is on air, the target audience and the parameters used in determining the target audience, the number of people or groups it reaches, etc. are included.
Provision of differentiated services specific to children: The social network provider shall take the necessary measures to provide differentiated services specific to children. In content, advertisements and other services offered to users who can be understood to be children, the social network provider takes into account the age of the child, the best interests of the child, the protection of the child’s physical, psychological and emotional development, the prevention of sexual abuse and commercial exploitation risks, the protection of the child’s personal data, ensuring a high level of privacy settings and a minimum level of data processing, and presenting issues such as contracts, user settings and data policies in a way that the child can understand.
Hosting data in Turkey: A social network provider with more than one million daily accesses from Turkey shall take the necessary measures to host the data of users in Turkey in Turkey. In the implementation of hosting the data in Turkey, priority shall be given to taking the necessary measures to host the basic user information and the data related to the issues that may be notified by the Authority in Turkey.
To protect user rights: To act equally and impartially among users, to provide users with the option to update their preferences regarding the content it recommends and to limit the use of their personal data, to inform the Authority and users in clear and understandable Turkish about this situation within seventy-two hours at the latest from the detection of significant security breaches regarding user accounts that directly or indirectly affect users accessing from Turkey, ensure that users can easily access updates affecting user rights in the services it offers, provide clear, understandable and easily accessible information on its website on which parameters it uses when providing suggestions to users, establish a Turkish, clear, understandable and easily accessible application mechanism for hacked or impersonated accounts and finalise the applications within a reasonable period of time, and comply with other regulations regarding user rights to be made by the Authority.
Establishing a crisis plan: The social network provider is obliged to create a crisis plan for extraordinary situations affecting public security and public health and notify the Authority. Issues regarding the creation of a crisis plan and notification to the Authority may be determined by the Authority and notified to the social network provider.
3. FAILURE TO FULFIL REPRESENTATIVE DETERMINATION OBLIGATIONS
a) Imposing an administrative fine:
The social network provider that does not fulfil its obligations regarding the appointment of a representative shall be notified by the Authority. If the obligations regarding the appointment of a representative are not fulfilled within thirty days following the notification, the President of the Authority (“President”) shall impose an administrative fine of ten million Turkish Liras on the social network provider. If the obligations regarding the appointment of a representative are not fulfilled within thirty days following the notification of the administrative fine, the President shall impose a further administrative fine of thirty million Turkish Liras.
b) Imposition of an advertisement ban:
In the event that the obligations regarding the appointment of a representative are not fulfilled within thirty days following the notification of the administrative fine imposed for the second time, the President shall prohibit the real and legal persons who are taxpayers resident in Turkey from placing new advertisements to the relevant social network provider.
c) Reduction of internet traffic bandwidth:
In the event that the obligations regarding the appointment of a representative are not fulfilled within three months from the date of the advertisement ban decision, the President may apply to the criminal court of peace to reduce the internet traffic bandwidth of the social network provider by fifty percent.
If the obligations regarding the appointment of a representative are not fulfilled within thirty days following the implementation of the judge’s decision on the acceptance of the application, the President may apply to the criminal judge of peace to reduce the internet traffic bandwidth of the social network provider by up to ninety per cent.
The judge may determine a rate not lower than fifty per cent, taking into account the nature of the service provided, in his/her decision on the restriction of internet traffic bandwidth up to ninety per cent.
The President may appeal against the decisions of the judge in accordance with the provisions of the Code of Criminal Procedure No. 5271. The decisions of the judge shall be sent to the Authority to be notified to the access providers.
The requirements of the decisions shall be fulfilled by the access providers immediately and within four hours at the latest as of the notification. In the event that the obligations regarding the appointment of a representative are fulfilled, one fourth of the administrative fines imposed shall be collected, the advertisement ban shall be lifted, and the judge’s decisions shall automatically become null and void. Access providers shall be notified by the Authority in order to terminate the interference to the bandwidth of internet traffic.
4. FAILURE TO FULFIL OTHER OBLIGATIONS
The President shall impose an administrative fine of five million Turkish Liras on the social network provider who fails to fulfil the obligation to respond to the applications made by individuals. Upon the applicant’s complaint, the Authority shall examine whether the social network provider has fulfilled its obligation. The Authority evaluates the applications made on the grounds that the obligation is not fulfilled collectively during the reporting periods.
In the assessment to be made by the Authority; whether the social network provider establishes the necessary systems to fulfil its obligation effectively, regularly gives negative answers to certain individuals or institutions, systematically violates the deadlines set out in these Procedures and Principles, and the negative answers given to the applications are unjustified are taken into consideration.
The President shall impose an administrative fine of ten million Turkish Liras on the social network provider that fails to fulfil its reporting or advertisement library obligation.
In case of breach of the obligation to provide information to judicial authorities, the public prosecutor may apply to the Ankara Criminal Judge of Peace with the request to reduce the internet traffic bandwidth of the social network provider by 90%. If the decision is issued, it shall be sent to the Authority to be notified to the access providers. The decision shall be executed immediately and within four hours at the latest following the notification. In the event that the social network provider fulfils its obligation, the decision to reduce the bandwidth of internet traffic shall be lifted and sent to the Authority to be notified to access providers.
In the event that the social network provider fails to fulfil any of its obligations such as hosting the data in Turkey (Article 13), providing differentiated services specific to children (Article 14), protecting user rights (Article 15), protecting the security of life and property (Article 17), informing the Authority (Article 18), creating a crisis plan (Article 19), the President may impose an administrative fine up to three per cent of its global turnover in the previous calendar year.
Failure to implement the decision to remove content and/or block access: The President may decide to prohibit real persons and legal entities resident in Turkey who are taxpayers from advertising on the relevant foreign social network provider for up to six months.
In addition to the advertisement ban decision, the President may apply to the criminal judge of peace to reduce the internet traffic bandwidth of the social network provider by fifty per cent until the content removal and/or access blocking decision is executed.
In the event that the social network provider fails to comply with the decision to remove the content and/or block access within thirty days following the notification of the decision on the acceptance of this application, the President may apply to the criminal judge of peace to reduce the internet traffic bandwidth of the social network provider by up to ninety per cent.
The decisions made by the judge shall be sent to the Authority to be notified to the access providers. The decision shall be executed immediately and within four hours at the latest following the notification. If the social network provider fulfils the requirements of the decision to remove the content and/or block access and notifies the Authority, only the measure of narrowing the bandwidth of internet traffic is removed.
Failure to pay administrative fines: In the event that the administrative fines are not paid within the legal period more than once in a year, the President may decide to prohibit real and legal persons and legal entities who are taxpayers resident in Turkey from placing new advertisements to the relevant social network provider for up to six months. In the event that the foreign social network provider pays the administrative fines in full and notifies the Authority, the advertisement ban decision shall be lifted.
Common provisions regarding the advertisement ban:
Pursuant to the advertising ban decision, no new contract may be concluded with the social network provider and no money may be transferred to the social network provider.
The advertisement ban decision issued by the President shall be sent to the Official Gazette for publication.
The matters regarding the implementation of the advertisement ban decision published in the Official Gazette shall be monitored by the relevant public institutions and organisations.
The President may decide to impose an administrative fine from ten thousand Turkish Liras to one hundred thousand Turkish Liras on real and legal persons resident in Turkey and taxpayers who violate the advertisement ban.
