PROVIDERS

While the place that the Internet occupies in our lives is expanding day by day, this situation has led to the addition of new adjectives to our lives every day. The internet, which used to be used only as a means of accessing information in the past, has become a means of access to a wide range from grocery shopping to the exchange of ideas. Therefore, the diversity of the services provided has led to the birth of a series of subjects that cause a lot of confusion in the sector and which can be gathered under the title of Providers. We aim to enlighten these providers, who have different responsibilities and obligations, to some extent with this information note.

One of the most important sources at this point is the Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed through Such Publications (‘Law No. 5651’), known as the ‘Internet Law’. In this context, while some providers are required to fall within the scope of the Information and Communication Technologies Authority (‘ICTA’) and go through various information and document processes, some providers do not have similar obligations.

In addition, the Law on the Regulation of Electronic Commerce dated 27.11.2014 and numbered 6563 (‘Law No. 6563’), which was enacted in order to regulate the trading life through the internet and entered into force on 01.05.2015, has been the most comprehensive regulation on electronic commerce. The terms Service Provider and Intermediary Service Provider were first heard under the second article of this law titled definitions.

Location Provider

In Article 2/1/m of the Law No. 5651, hosting provider is defined as ‘real or legal persons who provide or operate systems that host services and content’. All hosting providers are obliged to obtain a hosting provider activity certificate by the ICTA. In the Law No. 5651, it is stated that hosting providers can be classified and differentiated. In the hosting providers on the website of the ICTA, we see a distinction between hosting providers that provide services for commercial purposes and hosting providers that provide services within their own organisation.

Social media tools such as facebook, twitter, instagram and linkedin, where users can create and change content on the website, have the title of hosting provider. In addition, electronic commerce sites such as sahibinden, n11, which are in the status of hosting providers that provide services within their own structure, where multiple sellers can offer their products for sale, are also examples of hosting providers.

Responsibilities and Obligations of the hosting provider

– Removing the reported unlawful content: The hosting provider is not obliged to check the content it provides or to investigate whether there is an illegal activity. However, if they are notified by judicial authorities, ICTA or persons whose rights are violated due to illegal content, they are obliged to remove this content.

– Storing traffic information: Unlike content providers, hosting providers are obliged to store traffic information such as source IP address, destination IP address, connection date and time information, requested page address, transaction information and result information with a time stamp for not less than one year and not more than two years and to ensure its confidentiality.

– Notification regarding its activity: Hosting providers are obliged to notify the ICTA. The list of hosting providers who notify is published on the website of the ICTA. In addition, it is stipulated in the Law No. 5651 that an administrative fine from ten thousand Turkish Liras to one hundred thousand Turkish Liras will be imposed in case of failure to notify.

– Information: Law No. 5651 imposes obligations on hosting providers to provide certain information to internet users on the homepage. (i) If a natural person; name and surname, if a legal entity; title and responsible persons, tax identification number or trade registry number, (ii) Place of residence, if a legal entity, place of headquarters, (iii) Electronic communication address and telephone number, (iv) If the service is provided within the framework of an activity subject to the permission or supervision of an authority, information regarding the competent supervisory authority. Law No. 5651 stipulates that in case of failure to fulfil the information obligation regarding the information listed in the Law No. 5651, an administrative fine from two thousand Turkish Liras to fifty thousand Turkish Liras shall be imposed.

Content Provider

Pursuant to Article 2/1/f of the Law No. 5651, content providers are defined as real or legal persons who produce, modify and provide all kinds of information or data offered to users over the internet. These are persons who publish, share and provide all kinds of information and data in visual and textual form on the internet. Personal bloggers, people who post on social networks such as Facebook, Instagram and Twitter are content providers.

Responsibilities and Obligations of the Content Provider

The content provider is personally responsible for the content that it uploads; however, it is not responsible for the content that it links to, re-shares (e.g. retweeting, reposting). The only exception to this is controversial, but as stated in the law, if it is clear from the way it is presented that it provides a link, adopts the content and aims for other internet users to access the content in question, then the responsibility of the content provider may come to the fore. For example, someone who shares someone else’s posts on his own profile in the form of reposts, retweets, etc. may be held liable as a content provider if this sharing constitutes an offence in terms of content.

In addition, although it is not defined in the Law No. 5651, content providers for commercial or economic purposes are obliged to keep the information we have included in the information obligation above and the introductory information regarding the hosting provider on their home page in an accurate, complete and up-to-date manner. Those who do not fulfil this obligation may be subject to administrative fines in accordance with the provision of the law.

Access Provider – Service Provider

Pursuant to Article 2/1/e of the Law No. 5651, access provider is defined as any real or legal person who provides access to the Internet environment to its users.

Access Provider and Service Provider have the same meaning. In addition to having to obtain an activity certificate from the ICTA like the hosting provider, it must be a member of the Access Providers Association. For example, companies such as TTNET, Vodafone, Turkcell Superonline are defined as access providers.

Responsibilities and Obligations of the Access Provider

The access provider is not obliged to control the websites and contents accessed through it and to determine whether these contents are unlawful or not. If the access provider is notified of unlawful content or websites, the access provider is obliged to block access to that content or website. In addition, the access provider is also obliged to block alternative means of access to the content to which access is blocked.

Social Network Provider

Social network provider is defined as real or legal persons who enable users to create, view or share content such as text, image, sound and location on the Internet for social interaction purposes in accordance with Article 2/1/s of the Law No. 5651. The definition of social network provider was introduced with the amendment dated 29/07/2020. In fact, among the websites we know as hosting/medium providers, those in the social network category were separated and separately defined as social network providers. In this sense, platforms such as Facebook and Twitter can be considered as social network providers as well as hosting providers.

Social Network Provider Liability

Social network providers are under the obligation to remove/depublish unlawful content, if possible, and to block access if not possible. Social network providers are now obliged to respond to requests within the scope of ‘removal of content and blocking access’ and ‘blocking access to content due to privacy’ within 48 hours at the latest. The negative answers to be given must be justified within this scope. Social network providers with more than 1 million daily access are under the obligation to designate at least 1 person as the representative of Turkey, and they are obliged to include their contact information on their website in an easily accessible manner.

Mass Use Provider

A collective use provider is a natural or legal person who provides people with the opportunity to use the Internet collectively. Internet cafes, arcades, schools and computerised libraries may be collective use providers. Providers of collective use are obliged to take measures to prevent access to and use of offence content and to keep records of such use. In addition, collective use providers for commercial purposes (Internet cafes, game halls, etc.) are obliged to comply with the measures whose procedures and principles are determined in the regulation within the scope of protecting families and children, preventing crime and identifying criminals.

Service Provider

Article 2/1/ç of Law No. 6563 defines the service provider as ‘real or legal persons engaged in electronic commerce activities’. The concept of service provider is interpreted as ‘the party that supplies the goods or services offered to the buyers’. The fact that sellers offer their own products for sale through their websites can be given as an example of the concept of service provider. The concept of service provider is the subject with the widest application area among the providers. The more diverse the concept of service, the more different appearances the service provider may have. Law No. 6563 addresses the obligations of service providers in detail. Although the obligations of the service provider are broad in this context, they can be summarised under 4 main headings as the obligation to provide information (Art. 3), obligations regarding the order (Art. 4), obligations regarding commercial electronic messages (Art. 5-8) and the obligation to protect personal data (Art. 10).

Intermediary Service Provider

Article 2/1/d of Law No. 6563 defines intermediary service providers as ‘real and legal persons who provide electronic commerce environment for the realisation of economic and commercial activities of others’. Based on the definition, intermediary service providers are those who provide the environment for third parties to perform electronic commerce transactions.

Intermediary service providers are real or legal persons who mediate the provision of goods, services or products to users, such as websites that enable the finalisation of certain purposes such as hotel reservation, concert ticket sales, etc. ‘Those who operate the electronic “marketplace” where the purchase and sale transaction is made between the buyer and the service provider are intermediary service providers.’ Web platforms that bring together the seller and the end consumer, i.e. websites that provide a place for the sale of other people’s products for this purpose, fall within the scope of the definition of intermediary service provider.

The obligations of the intermediary service provider are regulated in more detail in the law, and the obligation to obtain consent before sending commercial messages (Art. 5-8) and the obligation to protect personal data (Art. 10) are listed. Article 9/2 of the Law No. 6563 states that the obligations of intermediary service providers regarding the provision of information, ordering and sending electronic messages will be regulated by a separate regulation, and the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce (‘Regulation’) was published in the Official Gazette dated 26.08.2015.

In addition, in paragraph 9/1 of the E-Commerce Law No. 6563, it is regulated as follows: ‘Intermediary service providers are not obliged to check the content provided by real and legal persons using the electronic environment in which they provide services, and to investigate whether there is an illegal activity or situation regarding the goods or services subject to this content and content.’ According to the Article, intermediary service providers are not obliged to check the content of the products provided by natural and legal persons or to investigate whether the goods or services subject to the content are in compliance with the law.

Nevertheless, as seen in the decision of the General Assembly of Civil Chambers of the Court of Cassation (E. 2013/11-1138 K. 2014/16 numbered), if the content provided is unlawful or usurps someone else’s right, the intermediary service provider is obliged to remove the goods subject to the content provided upon notification to the intermediary service provider. If the intermediary service provider fails to take down the content despite the notice, the liability for compensation will also arise. Because continuing to publish the goods subject to the content despite the notice indicates that the intermediary service provider is defective. In this case, the third party may also file a lawsuit against the intermediary service provider in order to compensate the damage.

Article 12 of the Law No. 6563 regulates that administrative fines will be imposed against service providers and intermediary service providers in case of non-compliance with the obligations.

One of the important points to be emphasised is that a company that continues its activities as a service provider may also have that title by performing intermediary service provider transactions. For example, while hepsiburada and getir are only service providers in the initial phase, they also perform intermediary service provider transactions with different initiatives. For example, Getirçarşı acts as a marketplace for the markets in the neighbourhood, making Getir an intermediary service provider.

Conclusion

We have tried to explain the title of providers, which can be further elaborated, together with who is which subject in the basic sense, the examples that we frequently encounter in our daily lives and the basic obligations they have. In order to obtain more detailed information, the two basic laws mentioned in our article (No. 5651 and No. 6563) and the secondary legislation issued in connection with them can be used as a road map.