The Legal Regime of Social Network Providers, Internet News Sites and Over-the-Top Service Providers, and a Critique

Murat Volkan Dülger^*

INTRODUCTION

It is an undeniable fact that the internet, internet news sites and social media have become an indispensable part of our lives. It is equally a fact that freedom of expression is exercised far more independently and freely in these media than in the traditional media, and that every kind of opinion is freely expressed there by everyone. That this reality greatly disturbs those who hold power is yet another fact known to all.

The subject of this article is precisely the examination of these realities. In short, in this article we shall examine the process of law-making and legislative amendment that has taken place in our country over the past two years with regard to internet communication and the legal regime of the actors present on the internet, both in terms of the normative provisions and in terms of its effect on individuals and society, and we shall try to explain what is intended by it. In carrying out this examination we shall, on the one hand, deal with the normative provisions and, on the other hand, criticise them from the standpoint of freedom of expression.

In order to give an idea of the subject of the article, we may briefly indicate the headings of the topics:

The concept of social network provider entered our law through sub-paragraph (s), which was added to Article 2(1) of Law No. 5651 by Article 1 of Law No. 7253 of 29.07.2020, the “Law Amending the Law on the Regulation of Publications on the Internet and Combating Offences Committed by Means of Such Publications”. Under this provision the platforms/media in question are defined as “social network providers”. Additional Article 4, introduced by Article 6 of Law No. 7253, and Provisional Article 5, introduced by Article 7 of the same Law, lay down detailed rules on social network providers in an attempt to remove the uncertainties in this field.

However, these provisions at the same time each constitute an interference with fundamental rights and freedoms and are not in keeping with the libertarian philosophy of the internet.

The amendments made both to the Press Law and to Law No. 5651 by Law No. 7418 of 13.10.2022, the “Law Amending the Press Law and Certain Other Laws”, publicly known as the “Disinformation Law”, show that the wall built in front of internet communication has been raised even higher. The amendments and additions made by Law No. 7418 to various articles of Law No. 5651 have left nothing at all of the libertarian philosophy. Consequently, this legislation is contrary, first and foremost, to the Constitution, and also to the international conventions on fundamental rights and freedoms to which we are a party, among them in particular the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).

It is highly telling and striking that these amendments, which are aimed at eliminating every dissenting voice, were made on the eve of a very important election in particular. Regrettably, the logbook of Law No. 5651 shows us how democratic rights and freedoms in our country are being destroyed systematically, step by step, with each passing day. For this reason the story and the meaning of this Law must be well known. Our fear is that, despite the criticism of the majority of academics working in this field, this Law will not be amended and the anti-democratic internet regime will continue to be applied.

By Article 36 and the following articles of Law No. 7418, additions and amendments were made to certain articles of the Electronic Communications Law No. 5809 of 05.11.2008, and two new concepts were created: “over-the-top service” and “over-the-top service provider”. What is actually meant here are applications such as “Whatsapp”, “Signal”, Telegram”, “FaceTime” and the like, which are known in everyday language as instant messaging applications. With the amendments made to Law No. 5809 by Law No. 7418, an attempt is being made to bring these applications, too, under statutory regulation.

By Law No. 7418 of 13.10.2022, the “Law Amending the Press Law and Certain Other Laws”, the legislature made “internet news sites” subject to the Press Law and regulated these sites within that Law.

With the provisions introduced by Laws No. 7253 and No. 7418, the leash of social network providers, internet news sites and instant communication providers has been placed in the hands of the President of the Information and Communication Technologies Authority (BTK). What those who amended the law were aiming at has thus been achieved: the entire internet has been turned into an environment which the political power can control as it wishes and on which it can pull the plug whenever necessary. At the same time, and along the same lines, Law No. 5651 has been transformed into a fully-fledged “internet censorship law”.

In this article, then, in the context of the legislative amendments in question, we shall try to describe the legal regulation of the internet actors named in the title and how, by means of this regulation, freedom of expression is being destroyed and attempts are being made to stifle dissenting voices.

I. THE LEGAL REGIME OF SOCIAL NETWORK PROVIDERS

A. The Need to Regulate Social Network Providers

The concept of social network provider first entered our law through sub-paragraph (s), which was added to Article 2(1) of Law No. 5651 by Article 1 of Law No. 7253 of 29.07.2020, the “Law Amending the Law on the Regulation of Publications on the Internet and Combating Offences Committed by Means of Such Publications”¹. Before a special type of hosting provider was defined under the name of social network provider and made subject to various obligations, significant problems were encountered in practice with regard to hosting providers. The aim of this amendment was to eliminate those problems.

In the explanatory memorandum to the amending article, the purpose of the amendment was explained in the following terms: “As the use of social networks becomes more widespread, the problems encountered by users in these media are increasing and diversifying. Because there is no interlocutor for the social network concerned, users’ applications and the notifications of the competent authorities aimed at resolving these problems do not produce effective results, and people suffer harm. The provision aims to establish a more effective mechanism for the protection of personality rights by ensuring that there is a relationship of interlocution between users and the competent authorities, on the one hand, and social network providers, on the other…”².

Applications widely used on the internet and referred to as social media platforms, such as Facebook, Twitter, Instagram, LinkedIn, TikTok, Twich and Tumblr, used to be classified as hosting providers under Law No. 5651. However, as most of these companies have their seat in the United States of America, many question marks arose concerning the obligation to provide information. In the “Letter on International Letters Rogatory in Criminal Matters concerning Offences Committed on the Internet” of the Ministry of Justice’s General Directorate for International Law and Foreign Relations (today the General Directorate for Foreign Relations and the European Union), which is referred to in the judgment of the 12th Criminal Chamber of the Court of Cassation of 09.06.2014, E. 2013/26590, K. 2014/14164, it was stated that, as regards US-based service providers, under US legislation the traffic data relating to offences committed on the internet are retained by hosting providers and access providers for a period of 90 days; that, where an application is made by the official authorities within this period, a further 90 days are added to that retention period; but that, even where letters rogatory are issued within those periods in order to identify a suspect who has committed an offence via the internet, no result has been or can be obtained. For, according to the reply given to the request made by way of letters rogatory in the matter at issue³, since the offences in question (Arts. 134 and 136 of the Turkish Criminal Code (TCK)) are regarded under US legislation not as offences but as private-law disputes, the requirement of dual criminality (reciprocity) was not met and the requests were being returned. Likewise, as regards the letters rogatory sent to the USA in respect of offences such as insult, calumny or threat committed on these platforms⁴, it was reported that the US judicial authorities returned the requests without taking any action, stating that acts of this kind are assessed under US law as falling within the scope of freedom of expression⁵.

The fact that offences committed in the virtual environment are generally complex in structure, and that such heavily used platforms are subject to a different legal system, in most cases that of the USA, deprived the method of letters rogatory of its effectiveness⁶. In the previous editions of the book we had expressed our wish that, as it kept encountering obstacles of this kind in the courts, our country’s existing legislation, which is vague and puts many freedoms at risk, should also keep pace with today’s internet age.

In this context, pursuant to Art. 2(1)(s), added to Law No. 5651 by Law No. 7253, these platforms are now defined as “social network providers”⁷. In addition, Additional Article 4, introduced by Article 6 of Law No. 7253, and Provisional Article 5, introduced by Article 7 of the same Law, lay down detailed rules on social network providers in an attempt to remove the uncertainties in this field. However, these provisions at the same time each constitute an interference with fundamental rights and freedoms and are not in keeping with the libertarian philosophy of the internet. The amendments and additions made to various articles of Law No. 5651 by Law No. 7418, which we shall examine below, have left nothing at all of the libertarian philosophy. Consequently, this legislation is contrary, first and foremost, to the Constitution⁸, and also to the international conventions on fundamental rights and freedoms to which we are a party, among them in particular the ECHR and the case law of the ECtHR.

B. The Legal Regime of Social Network Providers under the Internet Law

1. In General

Law No. 7253, the “Law Amending the Law on the Regulation of Publications on the Internet and Combating Offences Committed by Means of Such Publications”, made important amendments to Law No. 5651. In sub-paragraph “s” of Article 2(1) of the Law, the social network provider, as a new internet actor, is defined as natural or legal persons who enable users to create, view or share content such as text, images, sound and location on the internet for the purpose of social interaction. With the additions and amendments made to Additional Article 4 of Law No. 5651 by Article 34 of Law No. 7418 of 13.10.2022, the “Law Amending the Press Law and Certain Other Laws”⁹, the responsibilities of social network providers were extended. Below we shall examine the rights and obligations of social network providers in turn.

2. The Obligation to Appoint a Representative, the Representative’s Qualifications and Responsibilities

Additional Article 4 and Provisional Article 5, which were added to the Law, also regulate the obligations and responsibilities of social network providers. Additional Article 4(1) makes it compulsory for foreign-based social network providers with more than one million daily accesses from Türkiye to appoint as their representative in Türkiye a person who will ensure that the documents served and the notifications and requests sent by judicial and administrative authorities are acted upon, that the applications made under Law No. 5651 on the ground of a violation of privacy or of personality rights are answered and that their obligations arising from this Law are fulfilled. This representative must be notified to the Information and Communication Technologies Authority. If the representative is a natural person, he or she must be a Turkish citizen and reside in Türkiye¹⁰.

Where the daily access to the social network provider from Türkiye exceeds ten million, the natural or legal person designated as representative by the foreign-based social network provider is, without prejudice to the responsibilities of the social network provider, fully authorised and responsible in technical, administrative, legal and financial terms; and where this representative is a legal person, it must be a branch established directly by the social network provider in the form of a capital company. With this addition made by Article 34 of Law No. 7418, the limits of the responsibility of foreign-based social network providers (and the great majority of them are foreign-based) were thus widened and the case in which the representative is a legal person was expressly regulated. Moreover, by expressly stating that the representative of the foreign social network provider is fully authorised and responsible in technical, administrative, legal and financial terms, it was made clear that, should social network providers fail to comply with the rules laid down, every kind of responsibility will rest on this representative. We believe that this provision will constitute a significant means of pressure on social network providers and will harm anonymity. Indeed, some social network provider companies also voiced their reservations on this point in the work of the parliamentary sub-committee in which they took part while the law was being drafted¹¹.

Additional Article 4(2) provides for various sanctions to be applied where no representative is appointed. First, the Authority issues a notice to a social network provider that fails to fulfil the obligation to designate and notify a representative. If this obligation is not fulfilled within thirty days of the notice, the President of the BTK imposes an administrative fine of ten million Turkish liras on the social network provider. If the obligation is still not fulfilled within thirty days of notification of that administrative fine, a further administrative fine of thirty million Turkish liras is imposed on the social network provider. If, within thirty days of notification of the administrative fine imposed for the second time, this obligation is not fulfilled, the President of the BTK prohibits natural and legal persons who are taxpayers resident in Türkiye from placing new advertisements with the social network provider concerned; no new contract may be concluded in this connection and no money transfers may be made in respect thereof. If the obligation is not fulfilled within three months of the date on which the advertising ban decision was given, the President may apply to the criminal judgeship of peace for the bandwidth of the social network provider’s internet traffic to be throttled by fifty per cent. If the obligation is not fulfilled within thirty days of the implementation of the judge’s decision granting the application, the President may apply to the criminal judgeship of peace for the bandwidth of the social network provider’s internet traffic to be throttled by ninety per cent. On the second application the judge may, in the decision, set a lower rate, provided that it is not below fifty per cent, having regard also to the nature of the service provided. The President of the BTK may lodge an objection against these decisions in accordance with the provisions of the Code of Criminal Procedure (CMK). The decisions given by the judge are sent to the Authority for notification to the access providers. The decisions must be implemented by the access providers immediately and at the latest within four hours of notification. If the obligation to designate and notify a representative is fulfilled, one quarter of the administrative fines imposed is collected, the advertising ban is lifted and the judge’s decisions automatically cease to have effect. The Authority also notifies the access providers so that the interference with the internet traffic bandwidth is brought to an end.

The fact that such severe sanctions are provided for where social network providers fail to appoint a representative, and in particular the restriction of bandwidth by up to ninety per cent, in reality means rendering the social media platform inaccessible. The reason why such a severe sanction is provided for in order to secure the appointment of a representative is the attempt to exert pressure on social media providers, to ensure that unwanted content is removed immediately and to obtain the IP addresses and similar identifying information of those who produce dissenting content from anonymous accounts. Moreover, since those who use these platforms can also foresee that, once a representative has been appointed, this information may be handed over to the BTK, this provision is capable of leading to self-censorship.

3. The Responsibility of Social Network Providers in Respect of Applications Made under Articles 9 and 9/A of the Internet Law

Pursuant to Additional Article 4(3), domestic or foreign-based social network providers with more than one million daily accesses from Türkiye are obliged to give a positive or negative reply to applications made by persons concerning content falling within the scope of Art. 9 and Art. 9/A within forty-eight hours of the application at the latest. Where the social network provider gives a negative reply, that reply must state reasons. Provisional Article 5(1)(a), for its part, provides that, within three months of the date of entry into force of Additional Article 4, the work necessary for fulfilling the obligations under paragraph 3 is to be completed.

I must say that we regard the introduction of such a provision as positive, in that it enables individuals to protect their rights in the applications they make, particularly in the event of an attack on personality rights. Individuals will thus be able to pursue their rights more effectively. In addition, the provision introduced by Provisional Article 5(1)(a) obliges social media providers to set up a system for this purpose. We believe that if this system is operated properly and social media providers, for their part, remove unlawful content, many disputes in this field will be resolved peacefully and the growing workload placed on the courts by these applications will thereby be reduced considerably.

4. The Obligation to Submit to the Authority Reports on the Implementation of Decisions on the Removal of Content and/or the Blocking of Access

Pursuant to Additional Article 4(4), a domestic or foreign-based social network provider with more than one million daily accesses from Türkiye is obliged to submit to the Authority, at six-monthly intervals, reports drawn up in Turkish containing statistical and categorical information on the implementation of the decisions on the removal of content and/or the blocking of access notified to it and on the applications falling under paragraph 3. The report on the applications falling under paragraph 3 is also published on the social network provider’s own website, after being purged of personal data. Provisional Article 5(1)(b), for its part, provides that, in accordance with their obligations under Additional Article 4(4), social network providers are to submit the first reports they prepare to the BTK in June 2021 and publish them on their website.

Additional Article 4(8) provides that the President shall impose an administrative fine of five million Turkish liras on a social network provider that fails to fulfil the obligation under paragraph 3, and of ten million Turkish liras on a social network provider that fails to fulfil the obligation under paragraph 4.

In this way, a practice already followed by the great majority of social network providers was in fact turned into a statutory obligation. There is nothing negative about this. On the contrary, it makes it statistically and undeniably clear to what extent freedom of expression on social media is restricted in our country. Indeed, a large number of NGOs working in the field of freedom of expression use these statistical data to compare countries’ approaches to freedom of expression. As will be seen in the following pages, our country’s record in this respect is, regrettably, very poor.

5. The Obligation to Provide Information on Certain Offences to the Authorities Competent for Investigation and Prosecution

By Article 34 of Law No. 7418, a paragraph 5 was inserted after paragraph 4 of Additional Article 4, and the remaining paragraphs were renumbered accordingly¹². Under this paragraph, where the information necessary to reach the perpetrators who create or disseminate internet content constituting the subject matter of the following offences under the Turkish Criminal Code (TCK): a) sexual abuse of children (Art. 103), b) publicly disseminating information misleading the public (Art. 217/A), c) disrupting the unity of the State and the integrity of the country (Art. 302), ç) Offences against the Constitutional Order and the Functioning of that Order (Arts. 309, 311, 312, 313, 314, 315, 316), d) Offences against State Secrets and Espionage (Arts. 328, 329, 330, 331, 333, 334, 335, 336, 337), is requested by the public prosecutor at the investigation stage or by the court conducting the trial at the prosecution stage, that information must be provided to the judicial authorities by the representative in Türkiye of the social network provider concerned.

If this information is not provided to the requesting Chief Public Prosecutor’s Office or court, the public prosecutor concerned may apply to the Ankara Criminal Judgeship of Peace requesting that the bandwidth of the foreign-based social network provider’s internet traffic be throttled by ninety per cent. Where a decision to throttle the internet traffic bandwidth is given, that decision is sent to the Information and Communication Technologies Authority (BTK) for notification to the access providers. The decision is implemented by the Union of Access Providers immediately and at the latest within four hours of notification. If the social network provider fulfils its obligations under this paragraph, the sanctions are lifted and the BTK is notified accordingly.

The offences in this provision other than the sexual abuse of children and disrupting the unity of the State and the integrity of the country raise question marks from the point of view of practice. In particular, the offence of publicly disseminating information misleading the public (Art. 217/A TCK), which was added to the TCK by Law No. 7418 and is known as the “disinformation law”, is in any event severely criticised for being contrary to the principle of certainty. If, on top of this, the identity details of those who create content are requested in the investigation and prosecution conducted for this offence and, where this is not done, social network providers are restricted to a degree approaching the blocking of access, the use of social networks as a space of freedom will be completely eliminated. In that case either people will practise self-censorship and refrain from sharing their critical thoughts, or social network providers will put up with the restriction of their bandwidth. Either approach means the destruction of freedom of expression.

Consequently, this legislative amendment is a measure whose timing is highly telling: it was enacted precisely before the approaching general elections in order to stifle the voice of every possible kind of opposition, to silence those who do oppose by means of the TCK and Law No. 5651, and to frighten those who are thinking of opposing. This and all similar anti-democratic provisions must be purged from our country’s legislation as soon as possible. Otherwise freedom of expression will not be realised, the culture of democracy will accordingly not mature, and we shall be condemned to live as a country and a society struggling in darkness.

6. The Obligation to Host Data in Türkiye

Pursuant to Additional Article 4(6), domestic and foreign-based social network providers with more than one million daily accesses in Türkiye must take the necessary measures to host in Türkiye the data of their users in Türkiye. We must say that we have reservations as to the technical feasibility of this. Since a data hosting service of this kind will entail additional investment, costs and technical difficulties, we think that social network providers will try to avoid it. On the other hand, since this is required in respect of the data of users in Türkiye, and since under Law No. 6698 on the Protection of Personal Data (KVKK) the transfer of such personal data abroad without the consent of the data subject is in any event prohibited, we consider this to be a reasonable obligation, both for the sake of protecting the personal data of the people living in our country and on account of the country’s national interests in this matter.

Pursuant to paragraph 20 of this article, the President of the BTK may impose on a social network provider that fails to fulfil its obligations an administrative fine of up to three per cent of its global turnover in the preceding calendar year. Since Article 8(12) of Law No. 5651 states that “The decisions on administrative fines imposed by the Authority on account of the misdemeanours defined in this Law may be challenged by way of legal remedy in accordance with the provisions of the Law on Administrative Judicial Procedure No. 2577 of 6/1/1982.” and Additional Article 4(20) does not indicate any other legal remedy, recourse may be had to the administrative courts against this administrative fine imposed by the President of the BTK on behalf of the BTK. The social network provider concerned may bring an action for the annulment of the administrative fine within sixty days of its notification to it (Art. 7 İYUK). We consider it appropriate that the path to the administrative courts has been kept open against these administrative fines, which may reach very high amounts. We assume that the administrative courts, compared with the criminal judgeships of peace, will devote more time to actions for the annulment of decisions concerning these sanctions and will deal with the matter more carefully from the standpoint of the restriction of fundamental rights and freedoms.

7. The Obligation to Take the Necessary Measures to Provide Differentiated Services Specific to Children

By Article 34 of Law No. 7418, a paragraph 7 was inserted after paragraph 6 of Additional Article 4, and the remaining paragraphs were renumbered accordingly¹³. Under this paragraph, social network providers were placed under an obligation to take the necessary measures to provide differentiated services specific to children. No further detail is given as to how this is to be done. Consequently, since social network providers are also responsible in technical terms, they are required to take into account similar measures applied in other countries of the world and to apply them in our country as well. However, since there are great differences from country to country in this respect, it is unclear which country’s or countries’ measures are to be taken into account. This, too, is contrary to the principle of certainty, which a law must satisfy.

Our explanations in paragraph 2 of the preceding item apply to this item as well.

8. Sanctions to Be Applied to Social Network Providers on Account of the Blocking of Access and the Removal of Content

Pursuant to Additional Article 4(9), in respect of foreign-based social network providers with more than one million daily accesses from Türkiye, the administrative fines to be imposed under Art. 8 and Art. 8/A are imposed in the amount of one million Turkish liras, and the judicial fines to be imposed under Art. 8 and Art. 9 are imposed as fifty thousand days.

9. The Sanction for Failure to Comply with a Decision of the President of the BTK on the Removal of Content and/or the Blocking of Access

By Article 34 of Law No. 7418, paragraphs were inserted after paragraph 9 of Additional Article 4, and the remaining paragraphs were renumbered accordingly.

Of these, under paragraph 10¹⁴, without prejudice to the administrative measures under Articles 8 and 8/A of Law No. 5651, where a decision on the removal of content and/or the blocking of access given by the President under Law No. 5651 is not complied with, the President of the BTK may decide to prohibit taxpayers resident in Türkiye, whether natural or legal persons, from placing advertisements with the foreign-based social network provider concerned for up to six months; no new contract may be concluded in this connection and no money transfers may be made in respect thereof. The advertising ban decision is published in the Official Gazette. In addition to the advertising ban decision, the President may apply to the criminal judgeship of peace for the bandwidth of the social network provider’s internet traffic to be throttled by fifty per cent until the decision on the removal of content and/or the blocking of access is complied with. If the social network provider does not comply with the decision on the removal of content and/or the blocking of access within thirty days of the notification to it of the judge’s decision throttling the internet traffic bandwidth by fifty per cent, the President may apply to the criminal judgeship of peace for the bandwidth of the social network provider’s internet traffic to be throttled by up to ninety per cent. The decisions given by the judge are sent to the Authority for notification to the access providers. The decisions are implemented by the access providers immediately and at the latest within four hours of notification. If the social network provider complies with the decision on the removal of content and/or the blocking of access and notifies the Authority, only the measure of throttling the internet traffic bandwidth is lifted. In other words, the other administrative sanctions are not withdrawn and are applied.

When this newly added paragraph is read together with Articles 8 and 8/A of Law No. 5651, it means that the plug of social media has been placed in the hands of the President of the BTK and hence of whichever political power happens to be in government at the time. Since we examine these two articles in detail below, we do not explain them here in order to avoid repetition. However, in the present system, conferring such wide powers to block internet access on the President of the BTK, who is appointed by the President of the Republic, a political figure, is contrary to the principle of the separation of powers and to the law, because entrusting a decision of such importance and of a judicial nature concerning the restriction of fundamental rights and freedoms to an official of the administration is contrary to Article 13 of the Constitution on the limitation of freedoms. The criteria for the restriction of fundamental rights and freedoms laid down in Article 13 of the Constitution and given concrete form in the judgments of the European Court of Human Rights (ECtHR) and the Constitutional Court (AYM) can be assessed and applied to a specific case only by a judge who has had a legal education, does this work as a profession and has experience in this matter. Anything else is contrary to the principle of the appearance of fairness, which is one aspect of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights (ECHR).

On top of that, the fact that, under Additional Article 4(10), where a decision on the removal of content and/or the blocking of access given by the President of the BTK is not complied with, the power to decide to subject the foreign-based social media provider to very severe sanctions has again been conferred on the same person ought not to be possible in a country in which the principle of the state governed by the rule of law applies and the supremacy of law is recognised. While the President of the BTK can give the decision to ban advertising directly himself, he requests the sanction of bandwidth throttling from the criminal judgeship of peace. What ought to be the case is that these practices, which are of such importance, directly concern fundamental rights and freedoms and are in reality sanctions in the guise of measures, should, if they are truly necessary, be decided on by a judge without exception.

Moreover, in view also of the workload of the criminal judges of peace in practice and their tendency to avoid dealing with matters other than the coercive measures laid down in the Code of Criminal Procedure (CMK), either judges specially authorised for these matters should deal with them or, most correctly, these requests should be addressed to the administrative courts, in conformity with the principle of the natural judge. Even if the President of the BTK decides on this in cases where delay would be prejudicial, the decision should be submitted to a judge for approval within 24 hours at the latest and action should be taken in accordance with the judge’s decision. This provision is capable of turning social media networks into a plaything of those in power. Most importantly, the internet and social media networks in particular, which are perhaps the first place in which so-called real democracy has found a field of application, thereby lose this characteristic.

In Additional Article 4(11)¹⁵, with reference to paragraph 10, it is provided that where the failure to pay within the statutory period the administrative fines imposed by the President under Law No. 5651 occurs more than once within one year, the President may decide to prohibit natural and legal persons who are taxpayers resident in Türkiye from placing new advertisements with the foreign-based social network provider concerned for up to six months; no new contract may be concluded in this connection and no money transfers may be made in respect thereof. The advertising ban decision is published in the Official Gazette. If the foreign-based social network provider pays the administrative fines in full and notifies the Authority, the advertising ban decision is lifted. The reservations and criticisms we expressed above in respect of paragraph 10 apply in exactly the same way to this paragraph.

Additional Article 4(12)¹⁶ provides that the President may decide to impose an administrative fine of between ten thousand and one hundred thousand Turkish liras on natural and legal persons who are taxpayers resident in Türkiye and who act in breach of the advertising ban imposed pursuant to Additional Article 4 of Law No. 5651. The reservations and criticisms we expressed above in respect of paragraphs 10 and 11 apply in exactly the same way to this paragraph.

10. The Obligation to Comply with the Rules on User Rights

Under Additional Article 4(13)¹⁷, the social network provider is obliged to comply with the rules on user rights to be adopted by the Authority for the protection of the rights of its users. Accordingly, the BTK should issue a regulation in conformity with this Law and ensure that users are able to exercise their rights. If rules are indeed made, and applied, so that users whose personality rights have been infringed or who are victims of an offence can exercise their rights by an easy and effective method, we can say that this is a positive provision. Our true opinion on this paragraph will therefore become clearer once the secondary legislation relating to it has been adopted.

Our explanations in paragraph 2 of item 6 above, entitled “The Obligation to Host Data in Türkiye”, apply to this item as well.

11. Liability for Damages on Account of Unlawful Content

Additional Article 4(14) provides that, where content whose unlawfulness has been established by a decision of a judge or court is notified to the social network provider, a social network provider that, despite the notification, does not remove the content or block access to it within twenty-four hours shall be liable to compensate the damage arising. For this civil liability to be enforced, it is not required that recourse be had to the liability of the content provider or that an action be brought against the content provider.

12. The Obligation to Establish an Effective Application Mechanism for the Removal of Hashtags and Featured Content by the Notice-and-Takedown Method

Under Additional Article 4(15)¹⁸, the social network provider is obliged to establish, in cooperation with the Authority, an effective application mechanism for the removal of hashtags and featured content by the notice-and-takedown method.

A social network provider is directly responsible, on account of the content in question, for an offence committed by means of another person’s publication for which it has provided a medium through hashtags or featured content, if the unlawful content has been notified to it and has nevertheless not been removed immediately and at the latest within four hours of its notification.

13. Reporting to Law Enforcement Content that Endangers the Safety of Persons’ Lives and Property

Under Additional Article 4(16)¹⁹, where the social network provider learns of content that endangers the safety of persons’ lives and property and delay would be prejudicial, it shares this content and the information on its creator with the competent law enforcement units. We consider this an important provision. When the social network provider notices this itself, or when it is alerted to it, it will share the information on the matter with the law enforcement unit concerned.

This provision is framed not as an obligation but as an auxiliary norm which it is thought would be good to observe. Indeed, by expressly using the word “learns” in the text of the paragraph, it speaks of a need to report if this information happens to be learned in one way or another. On social media platforms, to which millions of items of content are uploaded at every moment, imposing such an obligation on network providers would be at odds with reality. It would mean that social network providers also provide an editorial service, whereas these media have no such task or claim. For this reason it was appropriate to frame the norm in this way. However, by way of suggestion and having regard also to developing artificial intelligence technologies, we can say that social media platforms could help to ensure the safety of people’s lives and property if they learned of such information by means of artificial intelligence software and then, after filtering it, reported what they considered necessary. It is also possible to set up a mechanism that would filter the reports received from the persons using the platform as well and ensure that a report is made. Operating the two together would be the most suitable solution.

Our explanations in paragraph 2 of item 6 above, entitled “The Obligation to Host Data in Türkiye”, apply to this item as well. Consequently, the wording of paragraph 16 above and the explanations we have given on that paragraph are in contradiction with paragraph 20. The way to resolve this contradiction is to read the two paragraphs together: a sanction may be applied where, under paragraph 16, the social network provider, despite having “learned” of it, fails to pass this information on to the law enforcement units concerned. Consequently, for this to become an obligation, the condition of “learning” must first be fulfilled on the part of the social network provider. Unless this condition is met, there can be no question of an obligation and hence of an administrative fine.

14. The Obligations of Social Network Providers as Content and Hosting Providers under the Internet Law

Pursuant to Additional Article 4(17), in the application of the article the obligations of the social network provider do not remove its responsibilities and obligations arising from its being a content or hosting provider. Accordingly, social network providers are obliged to comply with Additional Articles 4 and 5 of Law No. 5651, which are specific to them, with the rules on content and hosting providers contained in the other provisions of Law No. 5651, and with the secondary legislation (regulations, communiqués, etc.) containing rules on internet actors. Complying only with the rules in Additional Articles 4 and 5 does not release social network providers from their other responsibilities.

15. The BTK’s Power to Request Information and to Conduct On-site Inspections

Additional Article 4(18)²⁰ provides that the Information and Communication Technologies Authority (BTK) may request from the social network provider any kind of explanation concerning the social network provider’s compliance with Law No. 5651, including its corporate structure, information systems, algorithms, data processing mechanisms and commercial attitudes. Where the Authority makes such a request, the social network provider is obliged to provide the information and documents requested by the Authority within three months at the latest. The Authority may inspect the social network provider’s compliance with this Law on site at all of the social network provider’s facilities.

Our explanations in paragraph 2 of item 6 above, entitled “The Obligation to Host Data in Türkiye”, apply to this item as well.

This provision can serve good purposes if it is used only to protect the rights of persons and in a limited manner. If instead, however (and this is generally what happens in our country), it is used to put pressure on social network providers in order to silence the views of persons who raise a dissenting voice, who are unwanted or disliked, or who go against the majority of society, it heralds even worse days ahead for freedom of expression and will be one of the most important instruments to that end.

16. The Obligation to Draw Up a Crisis Plan

Additional Article 4(19)²¹ provides that social network providers are obliged to draw up a crisis plan for extraordinary situations affecting public safety and public health and to notify it to the BTK.

Public safety and the extraordinary situations affecting public safety may be natural disasters such as earthquakes, landslides and storms; man-made situations such as a terrorist attack; or, in today’s IT world, extraordinary situations arising from the IT world itself, such as a collapse of the internet. Since the article draws no distinction between these, social network providers are required to think through in advance, and to draw up an action plan of, the measures that will ensure an uninterrupted flow of accurate news and information, enable people to find or help one another and, where necessary, assist the public authorities that are trying to eliminate the crisis or minimise its effects.

Our explanations in paragraph 2 of item 6 above, entitled “The Obligation to Host Data in Türkiye”, apply to this item as well.

17. Secondary Legislation

Additional Article 4(21)²², for its part, provides that the procedures and principles for the application of this article are to be determined by the Authority. Accordingly, the BTK must adopt detailed rules on how the regime and the obligations laid down for social network providers in Additional Article 4 of Law No. 5651 are to be put into practice and, in particular, must issue a detailed regulation on the matter.

18. Transitional Provision

By Article 35 of Law No. 7418, Provisional Article 6 was added to Law No. 5651²³. It provides that, if a social network provider that had designated a representative before the date of publication (18.10.2022) of Law No. 7418, which introduced this article, does not complete the obligations imposed by the amendments made to Additional Article 4(1) of Law No. 5651 by Law No. 7418, which introduced this article, within six months of the date of publication of the Law introducing this article (18.04.2023), Additional Article 4(2) shall be applied without the provisions on notice and administrative fines being applied.

This creates the impression that a facility has been granted to those who bear the status of social network provider, introduced into Article 2 of Law No. 5651 by Article 1 of Law No. 7253 of 29.07.2020, who have already designated a representative and who complete the newly introduced obligations within six months, in that it is provided that no administrative fine will be applied to them and only the provisions on the notification obligation will be applied. This, however, is no facility. For although it is stated that no administrative fine will be applied, the sanction of bandwidth throttling has been left as it is. Consequently, the sanction of bandwidth throttling, which is the real sanction as far as social media are concerned, has been left as it is. Indeed, this point was also raised in the work of the parliamentary sub-committee on the Law and was criticised by the members of parliament Onursal Adıgüzel, Ahmet Tuncay Özkan and Burak Erbay, who appended a dissenting opinion to the report of the “Digital Media Commission” of the Grand National Assembly of Türkiye (TBMM) on Law No. 7418:

“Article 35 also makes it possible to apply general censorship by throttling the bandwidth of social network providers … by up to 90%. As will be recalled, after the Ankara Railway Station Massacre of 10 October 2015, the Ankara Güvenpark explosion of 13 March 2016, the Istanbul Beyoğlu explosion of 19 March 2016 and the Atatürk Airport explosion of 28 June 2016, recourse was had to the method of ‘bandwidth throttling’ against social media, chiefly Twitter, Facebook and Youtube. Bandwidth throttling is unacceptable, being a practice that punishes the user and violates the freedom of communication and of the press. In this framework the article in question must be removed from the bill”²⁴.

Indeed, the most recent application of this was the bandwidth throttling applied to Twitter after the earthquake of 6 February 2023, which was centred on Kahramanmaraş, spread to 11 of our provinces and caused the death of at least 50 thousand of our people. While everyone was struggling for their lives, while many people were under the rubble, while the survivors of the earthquake were battling cold and hunger, and while this application was being used to ensure coordination for the necessary search-and-rescue activities and for the distribution of relief supplies, it was seen that the application was rendered unusable by throttling its bandwidth because content criticising the government had multiplied. We already knew that those who carried out this measure were strangers to what law is and to the principle of the supremacy of legal rules ; but in this way we also learned that they are strangers to humanity as well!

C. Assessment and Our View

The fact that the use of social networks is steadily increasing is an undeniable reality established by the research reports cited in the first and second chapters of the book. It is likewise a fact that the infringements of rights and the offences committed on social networks are steadily increasing, but that in the investigations and prosecutions conducted in respect of these offences there are many deficiencies in the technical and legal examinations because the social networks are based abroad. However, when the nature of the obligations imposed on social network providers by this legislation and the degree of responsibility envisaged for them are taken into consideration, it becomes apparent that the amendments introduced by Law No. 7253 serve to subject these platforms to intensive control rather than to solve the problems encountered in practice. Indeed, the sanctions to be applied where no representative is appointed increase gradually and constitute a heavy burden for social networks; in particular, sanctions such as the throttling of internet traffic bandwidth and the advertising ban are capable of rendering social networks inoperable.

Under Additional Article 4(3), social network providers with more than one million daily accesses from Türkiye are obliged to give a positive or negative reply to applications made by persons concerning content falling within the scope of Art. 9 and Art. 9/A within forty-eight hours of the application at the latest. A negative reply by the social network provider must also state reasons. Where persons apply to social network providers that have millions of users throughout Türkiye on the ground that their personality rights have been violated (Art. 9) or that their privacy has been violated (Art. 9/A), requiring the social network providers to reply to the application within only forty-eight hours is a very heavy burden when the intensive operation of these platforms is borne in mind. In a similar spirit, Additional Article 4(8) accepts that a social network provider that does not remove the content or block access to it within twenty-four hours, despite having been notified of content whose unlawfulness has been established by a decision of a judge or court, shall be liable to compensate the damage arising. Moreover, for this civil liability to be enforced it is not required that recourse be had to the liability of the content provider or that an action be brought against the content provider. The twenty-four-hour period laid down in this provision is very short for these platforms with their millions of users. In addition, if the content is not removed or access is not blocked within this period despite the notification, the persons concerned will claim the damage they have suffered from the social media companies, whose turnover is very high. For in this case the provision expressly states that the requirement of first having recourse to the liability of the content provider before claiming compensation from the social network providers does not apply. This will mean a financial burden for the companies. What is more, making it possible to turn to the social media platforms, which merely host the content, before turning to the content providers who produce, modify and supply the unlawful content is not appropriate from the standpoint of the law of liability.

However, since the accounts supplying content on many social media platforms are anonymous, or it is not possible to reach these persons, or by the time they are reached the content in question will in any case have spread, rendering the measure ineffective, speed of intervention vis-à-vis the social media platform is of the utmost importance, and for that reason the provision is appropriate in this respect.

In conclusion, it can also readily be said that this is a positive regulation, provided that these provisions are used not by those in power to stifle the voice of the opposition but for the purpose of enabling persons whose personality rights have genuinely been violated to exercise their rights. However, it is a known fact, founded on historical experience, that in our country regulations of this kind are used not to enable individual right-holders to protect their rights, but as a cover, and to that end, by those in power and by interest groups in order to silence dissenting voices and protect their own interests. We hope that this time we shall be proved wrong.

II. THE LEGAL REGIME OF INTERNET NEWS SITES

A. The Problem of the Applicability of the Rules of Press Law to Internet Publishing

Before explaining what kind of legal regime internet news sites are subject to, we wish to explain under this heading how this regulation ought not to be; we think that the existing legal regime can be better assessed in this way. In this context we would first like to state that, owing to the nature of the internet environment in which internet news sites publish and to the fact that, since these sites engage in digital publishing, they lend themselves to very rapid publication of news and information, they cannot be assessed in the same way as the print and visual press and should therefore not be subject to the Press Law.

The print, visual and digital press occupy the most important place in the use of the mass media. Publications made over the internet thus give rise, particularly with regard to internet journalism, to the problem of whether it is possible to apply the rules of press law created for the print and visual press, and hence to the concept of “internet publishing”. When the concept of publishing is at issue, one of the first questions that comes to mind is whether “censorship” is possible with regard to internet publishing.

It should be said at this point that in this study we deliberately avoid using the concept of “censorship” (though we must admit that we have nevertheless been compelled to use it abundantly). For Article 28 of the 1982 Constitution clearly states that “the press is free and shall not be censored”. There should be no doubt that this mandatory provision of the Constitution also applies to internet publishing.

Additional Article 9, which was added by Article 26 of Law No. 4756 of 15.05.2002 to the Press Law No. 5680, since repealed by the Press Law No. 5187, stated: “The provisions of this Law concerning pecuniary and non-pecuniary damage arising from false news, insult and similar acts shall also apply to every kind of writing, picture, sign, image with or without sound and the like published by means of information technologies and by opening a page on the internet or by electronic newspaper, electronic bulletin, etc.” However, this provision met with intense criticism in legal scholarship and, indeed, no similar provision was included in the new Press Law No. 5187.

Indeed, the repealed Press Law No. 5680 contained no provision on “untrue news”, “insult” and similar acts. The offence of insult is regulated in the Turkish Criminal Code. That law contained no provision on pecuniary and non-pecuniary damage arising from untrue news, insult and similar acts. It was not clear what was meant by the concept of an act similar to the act of insult; this provision was also plainly contrary to the principle of certainty, a sub-principle of the principle of legality of offences and penalties²⁵.

The number and soundness of these criticisms, and the fact that the provisions in question were not carried over into the new Press Law, clearly show that it is not possible to regulate the internet by means of the provisions of the Press Law, because there is a significant tissue incompatibility between the two. Just as television broadcasting and newspaper publishing differ from one another, internet publishing has a structure different from both and makes use of the possibilities peculiar to the internet²⁶.

For example, applying to internet publishing the rules on the exercise of the right of reply and correction in the print and visual press could lead to various problems and confusion. On the internet, regulating the right of reply and correction as it is regulated in the Press Law, in accordance with the criteria of publication in the same place, in the same form and in the same type size, will cause problems by reason of the nature of the internet.

Another problem that arises in connection with internet publishing is that content containing elements of an offence remains there for a very long time and, in particular, that even if this publication is not being searched for, it may appear before a person when a search is run in any search engine using a term that occurs in the publication²⁷. This constitutes a violation of the right to be forgotten²⁸.

For the reasons mentioned above, a law and related regulations which take account of the internet’s own philosophy and technical structure should be enacted with regard to internet communication and internet publishing. By means of these rules, the internet should be freed from the impression of being a lawless space, and at the same time efforts should be made to ensure that democratic rights and freedoms are exercised to the widest extent and that violations of individual freedoms are prevented. Indeed, this point is very well explained in legal scholarship in the following words:

“The internet is like a lighthouse… It illuminates. It shows the way. Life goes on on the internet. Our choices as to how you will lead life will also determine the future of the country. We must accept freedoms and rights as the rule and restrictions as the exception, and change our mentality accordingly. This is the only option. The contrary options are proof that we do not believe in the supremacy of law and the principles of the rule of law.”²⁹.

In conclusion, regulating internet news sites in the Press Law is a mistaken approach. Because of the internet’s own particular structure, internet news sites also have a structure of their own. Applying to these sites the rules on print publishing, and print journalism in particular, which date from the 19th century, cannot deliver the expected benefit. This is not an approach suited to the purpose. Internet news sites should be regulated in a separate law drafted with their own particular technological infrastructure in mind; and, in regulating them, the particular structure of the internet should be taken into account and it should not be forgotten that freedom is the rule and restriction the exception.

B. The Legal Regime of Internet News Sites under the Press Law

1. In General

Contrary to the explanations we have given above, the legislature, by Law No. 7418 of 13.10.2022, the “Law Amending the Press Law and Certain Other Laws”³⁰, made internet news sites subject to the Press Law and regulated these sites within that Law. We made it clear above that we do not consider this appropriate; therefore, instead of repeating those views here, we shall try to explain under this heading what the legislative amendment has introduced and what effects it may have.

Under this heading we shall examine only the additions and amendments made to the Press Law with regard to “internet news sites”. We shall not embark on the ambitious task, which would exceed the dimensions of this book, of examining and explaining all the provisions currently contained in the Press Law, even though they concern internet news sites. That would require the writing of a book on press law that encompasses internet news sites, and this would go beyond the limits of our book. Consequently, for the rules on print and visual press organisations that are currently in force with regard to internet news sites, reference should be made to the Press Law and to the works written on press law.

2. Definition

In sub-paragraph (m) of Article 2 of the Press Law, entitled “Definitions”, an internet news site is defined as “a periodical established and operated in order to present, on the internet and at regular intervals, written, visual or audio content in the nature of news or commentary”. Accordingly, three conditions must be met together for a site to be classified as an internet news site. These are: a) that content in the nature of news or commentary is presented,

b) that this content is presented at regular intervals, and c) that the presentation takes place on the internet. As a result, the legislature has placed internet news sites in the category of “periodicals” and subjected them to the regime specific to these³¹. Indeed, in sub-paragraph (c) of Article 2 a periodical is defined as “printed works published at regular intervals, such as newspapers and magazines, as well as the publications of news agencies and internet news sites”.

3. Freedom and Its Limit

Under Article 3(1) of the Press Law, the press is free. This freedom comprises the rights to obtain and disseminate information, to criticise, to interpret and to create works. It is thus stated that, as a rule, the press is free. Paragraph 2 of the article indicates the cases in which this freedom may be restricted: accordingly, the exercise of freedom of the press may be restricted only in accordance with the requirements of a democratic society and for the purposes of protecting the reputation and rights of others, public health and public morals, national security, public order, public safety and territorial integrity, preventing the disclosure of State secrets or the commission of offences, and maintaining the authority and impartiality of the judiciary.

As can be seen, general grounds for restriction such as public safety and the safeguarding of territorial integrity are listed here as well. An important point in this provision is that, quoting directly from the judgments of the European Court of Human Rights (ECtHR), it provides that freedom of the press may be restricted only “where this is necessary in a democratic society”. The application in practice of this provision, which in normative terms has attained the ECtHR standards specific to this field, must therefore also be looked at. Furthermore, the ECtHR’s other criteria concerning the limitation of limitations, which we set out at the beginning of this chapter, must without fail be taken into account in the decisions to be given on specific disputes on the basis of this norm.

4. The Obligation to Keep Information on the Site

Paragraphs 3 and 4, which were added to Article 4 of the Press Law, have remedied a deficiency in what ought to be found on internet news sites³². Pursuant to paragraph 3, which sets out the information that must be available on the site, “On internet news sites, in addition, the address of the place of business at which it operates, its trade name, e-mail address, contact telephone number and electronic notification address, together with the name and address of its hosting provider, shall be kept in its own internet environment, under the contact heading and in such a way that users can reach them directly from the home page.”

Frankly, we must say that we regard this provision as positive³³. For although we believe in freedom of expression and that the mass media, its most important reflection, should benefit from this freedom to the highest degree, we also accept that every freedom has a limit. Unlimited freedom destroys social order and causes chaos. The limit of this freedom is narrower in particular in the case of attacks on the personality rights of persons who are not public figures (those who are not politicians, artists, sportspeople, etc.). When such persons try to assert their rights by legal means, however, they are unable to pursue them because internet news sites contain either no information or insufficient information about the owners and/or operators of these sites. This provision is an attempt to prevent that. Article 15 of the Press Law lays down the sanction for breach of this obligation. Accordingly, if the particulars which Article 4 of the Press Law requires to be shown in printed works and on internet news sites are not shown or are shown untruthfully, then, in the case of periodicals, the responsible editor and the superior to whom the responsible editor is attached are punished with a judicial fine of between five hundred million and twenty billion liras.

5. The Obligation to Display News and Content Updates Clearly on the Site

Paragraph 4, added to Article 4 of the Press Law, contains the following provision³⁴: “On internet news sites, the date on which an item of content was first presented and the dates of subsequent updates shall be indicated on the content in such a way that they do not change each time it is accessed.”

Owing to the structure of the internet, content can be uploaded to any website very quickly and can likewise be changed and updated very easily. It is therefore possible for content that was visible on a website a moment ago to be removed or altered within a short time. The same applies to internet news sites. New news items are constantly being posted on these sites, and existing items are updated while still hot, even in real time. Access to the versions preceding the change or update, on the other hand, is difficult. Paragraph 4 was added to Article 4 of the Law in order to make it possible to identify and reach the versions preceding a change or update where these contain elements of an offence. In this way, the date on which the news item was first posted and the dates of updates will appear on the content in an unalterable manner.

Nevertheless, this provision does not mean that earlier content will be stored. Nor can internet news sites be expected to store every version of all content on their servers. That being so, where an allegation of unlawfulness is made, the situation must be documented, and evidence created and preserved, through the public prosecutor’s office if the content in question constitutes an offence, or by a time-stamped record of findings drawn up by a notary if there is an allegation of a violation of a personality right. This will also be corroborated by the version information on the internet news site. Frankly, this is the most suitable solution we have been able to find in the present situation.

6. The Consequences of Internet News Sites Being Regarded as Periodicals

a. General Obligations Arising from the Press Law

Pursuant to Article 2 of the Press Law, internet news sites are regarded as periodicals for the purposes of press law. For this reason the obligations concerning the appointment of a responsible editor in Article 5 of the Press Law, the conditions for being the owner of a periodical in Article 6, the filing of a declaration in order to be able to publish a periodical in Article 7 and the examination to which this declaration is subject in Article 8 also apply to internet news sites. Indeed, this point is also expressly stated in the general explanatory memorandum to the amending law:

“The Amendment Bill brings internet news sites within the scope of periodicals and regulates, in a manner similar to periodicals, the filing of a declaration, criminal and civil liability, the right of correction and reply, the trial procedure to which they will be subject and the authority with which declarations are to be filed. In order to eliminate the problems that may arise from the nature and dynamic structure of the internet, it is made compulsory to indicate on the content, in such a way that it does not change each time it is accessed, the date on which an item of content was first presented on the internet, thereby making it possible to determine the date for the purposes of the liabilities arising from that content. The aim is thus to ensure the rapid and effective notification of press announcements and of publication ban decisions given by judicial bodies.”

b. The Obligation to File a Declaration and Its Consequences

Pursuant to Article 8 of the Press Law, if the declaration filed by a periodical does not contain the required particulars or the information it contains does not reflect the truth, the criminal court of first instance may, at the request of the public prosecutor conducting the examination, order that publication be suspended. Paragraph 5, added to this article, provides that the sanction of suspension of publication shall not be applied to internet news sites³⁵. Accordingly, if an internet news site fails to comply with the provision in Article 8, the public prosecutor’s office asks the internet news site to remedy the deficiency or correct the untrue information within two weeks. If this request is not complied with within two weeks, the prosecutor’s office, seeking a finding that the status of internet news site has not been acquired, turns to the criminal court of first instance with an application. The court gives its decision within two weeks at the latest. An objection may be lodged against this decision.

There are two points we must make here. First, the application cannot be for “a finding that the status of internet news site has not been acquired”. Pursuant to Article 28 of the Constitution, entitled “Freedom of the press”, “The press is free and shall not be censored. The establishment of a printing house shall not be made subject to obtaining permission or to depositing a financial guarantee.” Accordingly, when we interpret the latest amendments to the Press Law by the purposive and extensive methods of interpretation, the rule that “the establishment of a printing house shall not be made subject to obtaining permission” can and must also be read as “the establishment of an internet news site shall not be made subject to obtaining permission”. That being so, since under the Constitution the establishment of an internet news site cannot be made subject to permission, such a site has the status of internet news site from the moment it is established and begins to publish. Filing a declaration pursuant to Article 8 of the Press Law, before or after beginning to publish, is an obligation of the owner of the site; since the Law is not clear as to whether this is to be done before or after publication begins, the choice is left to the publisher. Consequently, in respect of a site that already has the status of internet news site, an application may be made and a decision given not for a finding that it has not acquired this status, but for the removal of this status. The practical significance of this is as follows: if there is a finding that this status has not been acquired, what will become of the publications made up to that moment? Will these publications not have the character of news appearing in a periodical? Will something that has happened be turned into something that has not happened? Will these news items be deemed legally non-existent? These questions show the senselessness of the provision. What is needed here is a rule that takes effect not retroactively but prospectively, from the time of the decision. In its present form the provision is, in our view, mistaken. Indeed, the explanatory memorandum to the amending article of the Law contains no explanation on this point³⁶. The explanatory memorandum states that, if such a decision is given, the internet news sites in question will be removed from the scope of periodicals. Consequently, once they have been removed from that scope by this decision, the obligations and sanctions laid down for periodicals can no longer be applied to these news sites. However, since there is no provision as to whether they are news sites or whether they may continue to publish, they will continue to retain both this character and their right to publish. These logical errors clearly show us that a regulation has been made which is not suited to the constitution of internet news sites.

The other point is the nature of the objection referred to here. Since the decision is to be given by the criminal court of first instance at the request of the public prosecutor’s office and since the Press Law lays down no separate rule on the objection procedure, the Code of Criminal Procedure (CMK) must be applied here and the remedy of objection under the CMK must be used. That being so, where such a decision is given, an objection must be lodged, in accordance with Articles 267 et seq. of the CMK, by a petition submitted to the authority that gave the decision within seven days of the time when the person concerned learned of the decision. Since the decision is given by the criminal court of first instance, the assize court is competent to examine the objection pursuant to Art. 268(3)(c) CMK.

c. Lapse, as a Consequence of Filing the Declaration, of the Rights Relating to Official Announcements and Advertisements and

to the Press Cards of Employees

Pursuant to Article 8(6) of the Press Law, if the application is granted, the rights relating to the official announcements and advertisements that may be provided for internet news sites and to the press cards of their employees lapse. The removal of the rights granted to an internet news site does not preclude the application of the sanctions provided for under this Law and/or the relevant legislation.

By Article 21 of Law No. 7418, there were introduced into Law No. 195³⁷, after its Article 45, a “Part Three” and, attached to that Part, Article 45/A bearing the main heading “Official Announcements and Advertisements to Be Published on Internet News Sites”³⁸. With this article and the amendments made to the relevant legislation, the aim was that official announcements and advertisements should be published on internet news sites, so that these sites would earn revenue and these announcements and advertisements would reach those concerned more quickly and effectively. Pursuant to Provisional Article 9, added to Law No. 195 by Article 23 of Law No. 7418, the qualifications to be possessed and the responsibilities to be fulfilled by those who are to publish official announcements and advertisements on internet news sites, as well as the method of publication, are to be determined by a regulation to be issued by the General Assembly of the Information and Communication Technologies Authority (BTK) within six months of the date of entry into force of the article³⁹. Indeed, the general explanatory memorandum to Law No. 7418 expresses this point as follows:

“In addition, Law No. 195 on the Organisation of the Press Advertisement Agency is amended so as to cover internet news sites as well, and, by ensuring that official announcements and advertisements are published in these media within the framework of specific rules, it is envisaged that the official announcements and advertisements currently given to print media enterprises will also be given to internet news sites. In this context, in order that official announcements whose publication in newspapers is compulsory under the provisions of special laws may reach more addressees effectively and efficiently and in order to ensure transparency and a competitive environment, it is made possible for them also to be published on internet news sites, and these sites are thus also designated as a medium for the publication of official announcements.”

When this paragraph is read together with the preceding paragraph, will a retroactive decision be given (that the status of internet news site was never acquired), so that the announcements placed up to that moment are also deemed null and void and the payments made for them are claimed back? Yet the announcements have been placed and have reached those concerned; in other words, the result which the announcement was intended to achieve has been achieved. In that case, if repayment is demanded, will this not be contrary to the Code of Obligations, given that the reciprocal performances have been rendered? As can be seen, the provision in paragraph 6 contradicts paragraph 5. To readers these may seem a pointless debate and a play on words. However, internet news sites need to earn revenue in order to survive and to secure the public’s right to receive true and accurate news. In fact this holds true for all commercial enterprises. If these provisions are applied, then, let alone the loss of revenue with prospective effect, all revenue may be reclaimed with retroactive effect as well. In that case no one will want to set up an internet news site and publish, and this will adversely affect both the freedom of the press to report and the public’s right to receive news. The only way to escape this is to file the declaration in question with the authority concerned truthfully, completely and as soon as possible⁴⁰.

This paragraph also provides that, when an internet news site ceases to have this status, the rights relating to the press cards held by its employees (Press Law, Additional Articles 1-7) also lapse. That persons working on internet news sites are regarded as members of the press and hold press cards was secured by the amendments made to the Press Law and other relevant laws by Law No. 7418⁴¹. We must say that this is an appropriate provision, for there is no difference whatsoever between a person who works as a journalist for a television channel or a newspaper and a person who performs the same task on an internet news site. It is therefore entirely appropriate that the rights granted to the former have also been granted to the latter⁴².

However, it is not appropriate that Article 8(6) of the Press Law provides that the rights of those who labour in the press will be taken from them on account of the news published on the internet news site for which they work. This provision both leads to collective criminal responsibility and has caused journalists to be put under pressure so as not to lose their own rights⁴³. This pressure works in two directions: on the one hand, so as not to lose the press card and the other rights it confers, the employee of an internet news site will impose self-

was added. In addition, in order to dispel doubts as to the judicial authority to which newspapers, magazines and internet news sites subjected to a sanction are to apply, the competent court was changed to the highest-ranking civil judge of first instance at the place where the General Directorate of the Agency is located, the fifteen-day period for the court to give its decision was abolished and the simplified trial procedure was introduced for the matter.” censorship on himself or herself and, on the other hand, will try to get the institution for which he or she works to apply censorship to the news it produces as well. At the very least their existence is a possibility, and it is a threat both to freedom of expression and to freedom of the press, which is one form of its exercise.

7. The Obligation to Preserve Content Published on an Internet News Site in a Manner that Ensures Its Accuracy and Integrity

Paragraphs 4 and 5, added to Article 10 of the Press Law, have imposed important obligations with regard to internet news sites⁴⁴. Accordingly, “Content published on an internet news site shall be preserved for a period of two years, with its accuracy and integrity ensured, so that it may be handed over when necessary to the requesting Chief Public Prosecutor’s Office. Where the internet news site is notified in writing by the judicial authorities that a publication is the subject of an investigation or prosecution, it is compulsory to keep the record of the publication that is the subject of the investigation or prosecution until notification that these proceedings have been concluded.”

Although this provision places an additional financial burden on internet news sites, the retention of these data for a certain period is a necessity, because they are the only evidence for establishing the unlawful acts that may be committed through the publications on these sites, in particular where personality rights are violated or an offence is committed. Setting this period at two years is reasonable and proportionate. It is likewise appropriate that, in a criminal investigation or prosecution, an obligation of retention for an unlimited period is imposed upon request. In such a case the investigating or prosecuting authorities will in any event ask for a copy of these records, and the obligation to keep them will cease at the latest when the decision becomes final.

Another point that needs to be emphasised here is that the data in question must be preserved, and transmitted to the requesting authority, with their “accuracy” and “integrity” ensured. From the standpoint of data science, the accuracy and integrity of data are of the utmost importance. Data can be used as a means of proof, that is to say as evidence, only if they have not been tampered with, corrupted or altered and there is no other circumstance that would give rise to doubt in this respect. It is therefore appropriate that this point is expressly stated in the Law. On the other hand, since no explanation is given as to how this accuracy and integrity are to be ensured, social network providers should be expected to do so by using software and hardware at the latest stage reached by data science and by digital forensic science. However, here too, expecting social network providers to bear a burden beyond what is “reasonable” would be contrary to the principle of proportionality. It would therefore be appropriate for the BTK to deal with this point in detail in the regulation which it is required to issue pursuant to Additional Article 4(21) of Law No. 5651.

Pursuant to Article 14 of the Press Law⁴⁵, a printer who fails to fulfil the delivery obligation under Article 10 of the same Law, which we explained above with regard to internet news sites, and the responsible editor of an internet news site who fails to fulfil the delivery and preservation obligation are punished with a judicial fine of between three hundred million and one billion liras⁴⁶.

8. The Right of Correction and Reply

The sentences added to paragraph 1 of Article 14 of the Press Law, entitled “Correction and reply”, regulate the right of correction and reply with regard to internet news sites. On internet news sites, the responsible editor is obliged to publish the correction and reply of the person harmed, without making any correction or addition, within one day at the latest from the date of receiving the text, on the pages and in the columns where the publication concerned appeared, by providing a URL link, in the same type size and in the same manner. Where a decision to block access to and/or remove the content issued in respect of the publication is implemented, or where the content is removed by the internet news site of its own accord, the text of the correction and reply is published for one week on the internet news site on which the publication concerned was made, for the first twenty-four hours on the home page. The other provisions on this right also apply to internet news sites. For the exercise of this right, reference should be made to the relevant articles of the Press Law.

We must say that we regard this provision as a positive one. For on these sites all kinds of news are published about everyone, and in some publications personality rights may be harmed. In fact, the same is true of the classical print and audiovisual press. However, media organisations for the most part do not publish the texts of rectification despite a judge’s decision and instead accept the risk of paying the judicial fine. We hope that this will not also be the case for internet news sites and that this provision will play an encouraging role for internet news sites in practising more responsible journalism.

9. The Manner of Reporting News on Sexual Assault, Murder and Encouragement of Suicide

Pursuant to Article 20 of the Press Law, entitled “Encouragement of sexual assault, murder and suicide”, those who publish, in respect of incidents of sexual assault, murder and suicide, texts and images which exceed the limits of reporting and are capable of encouraging the reader to engage in such conduct shall be punished by a judicial fine of from one billion liras to twenty billion liras. This penalty may not be less than two billion liras in the case of regional periodicals and ten billion liras in the case of nationwide periodicals and internet news sites.

From this provision we understand that the legislature regards internet news sites as “nationwide periodicals”. Having regard to the structure and accessibility of the internet, we must state that this is a correct approach. A similar provision is found in Article 21, entitled “Non-disclosure of identity”; in that provision too, where the party committing the violation is an internet news site, the lower limit of the penalty is higher and is set at the same level as for nationwide periodicals. However, while it is a correct approach to treat internet news sites as nationwide periodicals, we wish to state once again that, as we have also said above, we do not consider it appropriate for the rules on internet news sites to be laid down in the Press Law as though these sites were print publications.

10. Time Limits and Procedure for Prosecution and Investigation

By adding the phrase “internet news site” to Articles 26⁴⁷ and 27⁴⁸ of the Press Law, the time limit for bringing proceedings and the courts having jurisdiction and competence in respect of offences committed by means of internet news sites have been regulated. Accordingly, criminal proceedings concerning offences committed by means of internet news sites or the other offences provided for in the Press Law must be brought and conducted in accordance with the procedure laid down in these articles.

Accordingly, the rules of investigation and prosecution that apply to printed works will also apply to offences committed through internet news sites.

III. THE LEGAL REGIME OF OVER-THE-TOP SERVICE PROVIDERS

A. Definition and Concept

Articles 36 et seq. of Law No. 7418 added to and amended certain articles of the Electronic Communications Law No. 5809 of 05.11.2008 and thereby created two new concepts, namely “over-the-top service” and “over-the-top service provider”⁴⁹.

By sub-paragraph “(ççç)”, added to paragraph 1 of Article 3 of Law No. 5809 by Article 36 of Law No. 7418, over-the-top service is defined as interpersonal electronic communications services in the form of voice, written and visual communication which are offered to subscribers and users having internet access by means of publicly available software, independently of operators or of the internet service provided. By sub-paragraph “(ddd)”, added in the same way, over-the-top service provider is defined as the natural or legal person offering the services falling within the definition of over-the-top service.

What is in fact being referred to here are applications such as “Whatsapp”, “Signal”, “Telegram” and “FaceTime”, which in our everyday language we call instant messaging applications. With the amendments made to Law No. 5809 by Law No. 7418, an attempt is being made to bring these applications, too, under statutory regulation⁵⁰.

B. Rights and Obligations

Paragraph 14, added to Article 9 of Law No. 5809 by Article 37 of Law No. 7418, regulates the rights and obligations of over-the-top service providers. According to this provision, “The Information and Communication Technologies Authority (BTK) is authorised to adopt the necessary regulations concerning the provision of over-the-top services and to take all kinds of measures, including the imposition of obligations on operators, in order to ensure the blocking of over-the-top services offered without fulfilling the obligations laid down in the regulations or without authorisation.”

This provision gives the BTK the right to take any kind of action with regard to instant messaging applications. For all the regulations necessary for them to provide services will be made by the BTK, and if these regulations are not complied with, the services they provide will be blocked. A further point that emerges from this paragraph is that these applications may be operated only if they obtain authorisation from the BTK. If this authorisation is not obtained, the services they provide will likewise be blocked. In addition, the paragraph confers on the BTK the power to take all the measures and impose all the obligations necessary for this blocking to be carried out. The BTK has thus assumed the role of a sword of Damocles hanging over instant messaging services. The explanatory memorandum to the Law, for its part, states that this “may constitute unfair competition for operators offering similar services”. Frankly, everyone knows for what purpose this paragraph was introduced into the Law. For when there is no company in Türkiye offering such a service, it is not the task of our country’s legislature to regulate competition between foreign companies. The explanatory memorandum to the Law or, to put it more accurately, its “lack of reasoning / fabricated reasoning” clearly shows us for what purpose this paragraph was introduced into the Law⁵¹.

Today most people, including those living in our country, communicate through applications such as “Whatsapp”, “Signal”, “Telegram” or “FaceTime”, in writing, visually and live by video and voice. Naturally, the records of these communications, and sometimes even their content, are held on the servers of these applications. Now that all powers concerning these applications have been conferred on the BTK, the BTK will, by means of the obligations and measures it deems appropriate, put pressure on the companies that own or operate these applications, try to obtain this information which it has so far been unable to obtain, and try to take away people’s freedom in this field as well. The repressive regime and the anti-democratic laws and practices that have made themselves ever more strongly felt in our country in recent years give us no data whatsoever that would allow us to say otherwise. The purpose of this provision will therefore be understood even better later on. In any case, this paragraph is in complete contradiction with the principle of “privacy”, which is the very purpose for which the software in question came into being. This alone shows the anti-democratic character of the provision.

Pursuant to the second sentence of paragraph 14 added to Article 9 of Law No. 5809, over-the-top service providers may carry out their activities within the framework of an authorisation to be granted by the BTK, through their fully authorised representatives having the status of a joint-stock company or a limited liability company established by them in Türkiye⁵². It follows from this provision that, in order to be able to operate in Türkiye, instant messaging applications must both obtain authorisation from the BTK and carry on their activities as a joint-stock or limited liability company established in Türkiye. The reservations and criticisms we have set out with regard to the paragraph above also apply to this sentence.

From the third sentence of paragraph 14 added to Article 9 of Law No. 5809, it is understood that over-the-top service providers are to be regarded as operators for the purposes of Law No. 5809. The sentence reads as follows: “Over-the-top service providers shall be regarded as operators in respect of those rights and obligations, among the rights and obligations laid down for operators in this Law and in the other laws relating to the Authority’s field of competence, which are to be determined by the Authority according to the nature of the provision of over-the-top services.”

Because the predicates of the first and second halves of the sentence in the statutory provision do not agree, it cannot be understood in which cases over-the-top service providers will benefit from the rights and obligations of those regarded as operators under Law No. 5809. From the second half of the sentence, on the other hand, it is understood that they are regarded as operators for the purposes of Law No. 5809 and of the BTK. In our opinion, in speaking of rights and obligations, an attempt was made to express what really matters, namely that the BTK will also determine which rights they may benefit from, but the attempt did not succeed. As for the obligations, since these are explained in detail both in the first sentence of this paragraph and in Article 60 of Law No. 5809, which we shall examine under the next heading, there was no need to state them separately in this sentence. Consequently, while for the time being there is some, albeit partial, certainty as regards the obligations, there is complete uncertainty as regards the rights, and everything has been left to the discretion of the BTK. What this article is really trying to regulate, however, can be understood more easily from the explanatory memorandum concerning the third sentence of Article 37 of the amending Law No. 7418:

“In addition, express provision is made to the effect that the rights and obligations of those offering over-the-top services may be differentiated according to whether or not they offer the possibility of communicating with numbers included in the National Numbering Plan, and according to the number of users or the number of daily accesses in Türkiye. Furthermore, since new regulations will have to be made in respect of matters (such as interconnection and the conclusion of subscription contracts) in which not all the regulations falling within the Authority’s field of competence concerning the electronic communications sector can be applied to over-the-top service providers, the Authority is placed under an obligation to make regulations within this field of competence and over-the-top service providers under an obligation to comply with such regulations. In addition, the aim is to determine the information that the service providers in question are to send to the Authority.”

With this provision, all the strings of communication carried out over the internet are placed in the hands of the BTK. This is a provision that is compatible neither with the distributed (non-centralised) structure of the internet, nor with the philosophy behind the emergence of the internet, nor with the technical characteristics of these applications. If there is a genuine wish to apply this provision, that wish will mean that the applications in question cannot be used in Türkiye. Indeed, from paragraphs 16 and 17 added to Article 60 of Law No. 5809, which we shall examine below, it can readily be seen that the legislature genuinely does not want these applications to be used in our country, that this is its aim, and that it has prepared the statutory (but not the lawful) groundwork for this. What is in fact sought to be restricted is not the applications but freedom of expression and the right to receive information, which are among the most important requirements of a democratic regime⁵³.

C. Sanctions

Paragraphs 16 and 17, added to Article 60 of Law No. 5809 by Article 38 of Law No. 7418, regulate the sanctions to be applied to over-the-top service providers that fail to comply with the obligations imposed by the BTK. Accordingly:

“(16) An administrative fine of from one million Turkish liras to thirty million Turkish liras may be imposed on over-the-top service providers which, in breach of Article 9 of this Law, fail to fulfil the obligations laid down in the regulations or provide services without authorisation.”

This paragraph provides that an administrative fine will be imposed on instant communication applications if they fail to comply with the obligations to be imposed by the BTK under Law No. 5809 and/or operate without obtaining authorisation. Under the amendments made, these applications are required to operate in Türkiye as a limited liability or joint-stock company. The administrative fines in question will therefore be collected from these companies. Having regard to the high amount of these administrative fines, it is clear that the companies will be forced to comply with these regulations. What will happen if these regulations are not complied with, for example if activity is continued without any company being established in Türkiye at all, is regulated in the next paragraph. Accordingly:

“(17) The Authority may decide to throttle by up to ninety-five per cent the internet traffic bandwidth of an over-the-top service provider which fails to pay within the time limit the administrative fine imposed under paragraph sixteen of this article and which, within six months of the notification to be made by the Authority, fails to fulfil the obligations laid down in the Authority’s regulations or provides services without authorisation, or to block access to the application or website concerned. The decision, which is sent to the Access Providers’ Union for implementation, shall be carried out by the access providers.”

Under this provision, where the sanction in paragraph 16 of Article 60 of Law No. 5809 cannot be applied or where, even if it is applied, activity is continued without the obligations being fulfilled and/or without authorisation being obtained, the BTK may decide to throttle the internet traffic bandwidth of the over-the-top service provider by up to ninety-five per cent or to block access to the application or website concerned. In other words, an administrative authority will decide on the obstruction of people’s freedom of communication. That an administrative authority should decide on so important a restriction of freedom, when such a decision ought to be taken by the courts, is a state of affairs that should not exist in a state governed by the rule of law. For even if an action is brought before the administrative court against the BTK’s decision, mass communication will be blocked throughout the period until that court gives its decision (assuming that the decision is favourable).

In short, the communication applications that everyone uses today will either be able to continue their activities by setting up a company in Türkiye, in the manner determined by the BTK and by sharing all kinds of information with the BTK, or their bandwidth will be almost entirely restricted and the public will be prevented from using them. In other words, it is once again the public that is made to foot the bill. A sanction of this kind can be seen only in anti-democratic, repressive regimes. In countries such as Türkiye, which claim to have a democratic regime, there should be no such provision; or else Türkiye must face the facts and finally realise what kind of regime it has!

CONCLUSION

With the amendments made over the last two years to the legislation regulating the internet and social media, a new era, as it were, has begun in our country in the regime of both the internet and social media. It is extremely striking and thought-provoking that the need was felt, ahead of a historic election that will perhaps determine the fate of our country, for these amendments, which amount to restricting freedom of expression to the utmost degree. The fact that these amendments were for the most part made within omnibus laws is defective in terms of legislative technique; beyond that, the fact that freedom of expression is in essence being restricted while other public interests are presented as the purpose of the amendment is, above all else, stifling to human thought and freedom.

The internet and social media are a sphere in which freedom of expression can be exercised within the widest possible limits. Many of us, including the author and the readers of this article, have certainly experienced disturbing incidents of various kinds over the internet, such as being insulted, having our personality rights infringed and even being lynched. However, none of these disturbances can or should be a justification for bringing the internet and social media to heel and restricting freedom of expression without limit and contrary to its essence. While we, as ordinary people, put up with criticism for the sake of securing freedom of expression, the inability of politicians in particular to show tolerance in this regard is indicative of both a personal and a political stance: it is personal, because these persons have no tolerance for criticism in their individual worlds; in that case the solution is simple: leave politics, withdraw to your corner and enjoy a life far removed from all criticism; it is political, because these persons not only do not accept that they have done wrong in their public and political attitudes and conduct, but are also extremely uncomfortable with this being brought to light. The former concerns the person himself or herself; the latter concerns the whole of society!

Now, since almost the whole of the print and audiovisual press has been brought under control by various means, proper criticism is not (and cannot be) voiced in those media anyway; consequently, there is an intense barrage of criticism in the internet and social media, where criticism in the true sense is voiced and where society, and young people in particular, follow current affairs. Politicians who “for some reason” (perhaps because truths that are not meant to come to light are being voiced) cannot bear this are, on the one hand, using criminal law as an instrument of repression by putting to work offence types such as publicly disseminating misleading information to the public, publicly inciting the public to hatred and hostility and insulting the President of the Republic. On the other hand, since practices of this kind do not completely eliminate the voices that cause discomfort, they are, with the aim of solving the problem at its source, entirely destroying individuals’ freedom of expression by means of measures and sanctions that, as it were, press on the throat of the internet and social media and prevent them from breathing. In fact, the aim underlying all this serves a greater goal: the surveillance society!

A regime of all-encompassing repression is being applied through the restrictions imposed on the internet and on communication, the constant closure of websites or removal of content, and even the imposition of broadcasting bans on television series; and, on the other hand, through the opening of investigations and criminal proceedings against people who voice the slightest criticism, and even their pre-trial detention and ultimately their punishment. Pressures of this kind inevitably create in people the perception that there is a “big brother” over them and that they are being watched by this big brother; and, as a result of the conditioned reflex thus created, people are compelled to act on the perception that they are being watched even when big brother is not watching them at that moment. This in turn leads to a desertified intellectual and cultural life, to the existence of broad masses who perceive oppression, exploitation and poverty as a fate and who do not (cannot) object to it, ultimately to a society made up of unhappy and hopeless people, and to a country that makes no progress in any field and can barely feed itself. For law, and freedom of expression protected by the sharp sword of the law, is a basic need for the existence of a society living in prosperity and of a developed state apparatus that serves its people; like air, it is a need that is truly noticed only in its absence. Unfortunately, these are the conclusions that these legislative amendments and practices project onto the bigger picture.

The main points that we wish to emphasise in particular are as follows:

Under Art. 2(1)(s), added to Law No. 5651 by Law No. 7253, social media platforms are defined as “social network providers”. In addition, by Additional Article 4, introduced by Article 6 of Law No. 7253, and Provisional Article 5, introduced by Article 7 of the same Law, detailed provisions on social network providers were laid down in an attempt to remove the uncertainties in this field. However, these provisions at the same time constitute interferences with fundamental rights and freedoms and are not consonant with the freedom-oriented philosophy of the internet. The amendments and additions made to various articles of Law No. 5651 by Law No. 7418, for their part, have left nothing whatsoever of that freedom-oriented philosophy. This regulation is therefore contrary to the Constitution in the first place and to the international conventions on fundamental rights and freedoms to which we are a party, and among these in particular to the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR).

The provision of heavy sanctions in the event that social network providers fail to appoint a representative, in particular the restriction of bandwidth by up to ninety per cent, in fact amounts to rendering the social media outlet inaccessible. The reason why such a heavy sanction is provided for with regard to the appointment of a representative is the attempt to put pressure on social media providers, to ensure that unwanted content is removed immediately, and to try to obtain the IP addresses and similar identifying information of those who produce dissident content from anonymous accounts. Moreover, since those who use these media can also foresee that this information may be given to the Information and Communication Technologies Authority (BTK) once a representative has been appointed, this provision is capable of leading to self-censorship.

We must state that, in respect of applications made by individuals, we regard as positive the introduction of a provision enabling individuals to protect their rights, particularly in the event of an attack on personality rights. Individuals will thus be able to assert their rights more effectively. Moreover, the provision introduced by Provisional Article 5(1)(a) imposes on social media providers an obligation to set up a system for this purpose. We believe that if this system is operated properly and social media providers for their part remove unlawful content, many disputes in this field will be resolved peacefully and the increasing workload placed on the courts by these applications will thereby also be reduced considerably.

A social network provider of domestic or foreign origin is obliged to submit to the Authority, at six-monthly intervals, reports drawn up in Turkish containing statistical and categorical information on the implementation of the decisions to remove content and/or block access notified to it and on the applications falling within paragraph 3 of Additional Article 4 of Law No. 5651. In this way, a practice that the great majority of social network providers in fact already followed has been turned into a statutory obligation. There is nothing negative about this. On the contrary, thanks to it the extent to which freedom of expression is restricted via social media in our country is made clear statistically, in a manner that cannot be denied. Indeed, many NGOs working in the field of freedom of expression use these statistical data to compare countries’ approaches to freedom of expression. Unfortunately, our country’s record in this respect is very poor.

Paragraph 5, added to Additional Article 4 of Law No. 5651, provides that, in the case of the offences specified, the information necessary to reach the perpetrators who create or disseminate internet content must be given to the judicial authorities by the representative in Türkiye of the social network provider concerned, upon request by the public prosecutor at the investigation stage and by the court conducting the trial at the prosecution stage. In this provision, the offences other than the sexual abuse of children and disrupting the unity of the state and the integrity of the country raise question marks in terms of practice. In particular, the offence of publicly disseminating misleading information to the public, which was added to the Turkish Criminal Code (TCK) by Law No. 7418 and is known as the “disinformation law” (TCK Art. 217/A), is already harshly criticised for being contrary to the principle of certainty. If, on top of this, the identity information of those who create content is requested in the investigation and prosecution conducted for this offence, and if, where this is not done, social network providers are restricted in a manner close to the blocking of access, the use of social networks as a sphere of freedom will be eliminated altogether. In that case, either people will practise self-censorship and refrain from sharing their critical thoughts, or social network providers will put up with the restriction of their bandwidth. Both approaches amount to an interference with freedom of expression. This legislative amendment is therefore a regulation whose timing is highly telling, giving the impression that it was made, precisely before the approaching general elections, in order to muffle the voice of every possible form of opposition, to silence those who oppose by means of the TCK and Law No. 5651, and to intimidate those who are thinking of opposing. This and all similar anti-democratic regulations must be purged from our country’s legislation as soon as possible. Otherwise, freedom of expression will not be realised, the culture of democracy will accordingly not mature, and we shall be condemned to live as a country and a society struggling in darkness.

Paragraph 10 has been added to Additional Article 4, which was itself added to Law No. 5651. When this newly added paragraph is read together with Articles 8 and 8/A of Law No. 5651, it means that the plug of social media has been placed in the hands of the President of the BTK and hence of whichever political power is in government on the day. In the current system, conferring such wide powers to block internet access on the President of the BTK, who is appointed by the President of the Republic, a political figure, is contrary to the principle of the separation of powers and to the law; for entrusting a decision of such importance and of a judicial nature concerning the restriction of fundamental rights and freedoms to an official of the administration is contrary to Article 13 of the Constitution on the restriction of freedoms. The criteria for the restriction of fundamental rights and freedoms that are contained in Article 13 of the Constitution and given concrete form in the judgments of the ECtHR and the Constitutional Court (AYM) can be assessed and applied to a specific case only by a judge who has received legal training, who does this work as a profession and who has experience in this field. Anything else is contrary to the principle of the appearance of fairness, which is one aspect of the right to a fair trial enshrined in Art. 6 ECHR. On top of all this, the fact that paragraph 10 of Additional Article 4 confers on the very same person the power to decide to subject a social media provider of foreign origin to sanctions of a very heavy nature where a decision to remove content and/or block access issued by the President of the BTK is not complied with ought not to be possible in a country where the principle of the state governed by the rule of law applies and the supremacy of law is recognised. While the President of the BTK can issue the decision to block advertising directly himself, he requests the sanction of bandwidth throttling from the criminal judgeship of peace. What ought to be the case is that these practices, which are so important, directly concern fundamental rights and freedoms and are in reality sanctions in the guise of measures, should, if they are truly necessary, without fail be decided upon by a judge. Of course, this judge must also be an independent and impartial judge in the true sense, and the infrastructure and the conditions for this to be realised must be ensured.

This provision is capable of turning social media networks into a plaything of those in power. Most importantly, the internet and in particular social media networks, which are perhaps the first place where what is called real democracy found a field of application, thereby lose this characteristic.

An obligation has been imposed on social media outlets to report offences of which they become aware. This provision has been framed not as an obligation but as an auxiliary norm with which it is thought that it would be good to comply. Indeed, by expressly using the words “becoming aware” in the text of the paragraph, it speaks of the need to make a report if this information happens to be learned in some way. On social media platforms, to which millions of items of content are uploaded at every moment, imposing such an obligation on network providers is not compatible with reality. It would mean that social network providers also provide an editorial service, and these media have no such task or claim. For this reason, it is appropriate that the norm was framed in this way. However, as a suggestion, and having regard also to developing artificial intelligence technologies, we can say that if social media platforms were to learn of such information by means of artificial intelligence software and then, after filtering it, report what they consider necessary, this could help to ensure the safety of people’s lives and property. It is also possible to set up a mechanism that would enable reports to be made after filtering the notifications received from the persons using the platform as well. Operating the two together would be the most appropriate solution.

The provision adopted gives the BTK the power to request information from the social network provider and to carry out on-site inspections. This provision can serve good purposes if it is used solely to protect persons’ rights and in a limited manner. If, however, it is instead (as is generally the case in our country) used to put pressure on social network providers in order to silence the views of persons who raise a dissenting voice, who are unwanted, disliked or at odds with the majority of society, this is a harbinger that even worse days are at hand for freedom of expression, and it will be one of the most important instruments of this.

With the latest amendments, the sanction of “bandwidth throttling”, which had no legal basis, has been given a statutory footing. However, the fact that a normative regulation has been made does not mean that the regulation made is lawful. Since this regulation, the throttling of the bandwidth of various social media outlets has begun to be applied more frequently. Indeed, its most recent application was the bandwidth throttling applied, after the earthquake of 6 February 2023, which was centred on Kahramanmaraş, spread to 11 of our provinces and caused the death of at least 50 thousand of our people, to Twitter. While everyone was struggling to stay alive, while many people were under the rubble, while those who had survived the earthquake were struggling against cold and hunger, and while the coordination needed for the necessary search and rescue activities and for the distribution of relief supplies was being provided by means of this application, it was seen that the application was rendered unusable by the throttling of its bandwidth on the ground that content criticising the government had multiplied. We already knew that those who took this decision had no inkling of what law is or of the principle of the supremacy of legal rules; but in this way we also learned that they have no share of humanity either!

Article 28 of the 1982 Constitution expressly states that “the press is free and shall not be censored”. There should be no doubt that this mandatory provision of the Constitution also applies to internet publishing.

Regulating internet news sites in the Press Law is a mistaken approach. Because of the sui generis structure of the internet, internet news sites also have a sui generis structure. Applying to these sites the rules on print publishing, and in particular print journalism, which date from the 19th century cannot deliver the expected benefit. This is not an approach suited to the purpose. Internet news sites should be regulated in a separate law to be drafted with regard to their own particular technological infrastructure, and in making that regulation both the particular structure of the internet should be taken into account and the starting point should be that freedom is the rule and restriction the exception.

For a website to be classified as an internet news site, three conditions must be met together: a) content in the nature of news or commentary is offered, b) this content is produced at regular intervals, c) it is offered on the internet. As a result, the legislature has placed internet news sites in the category of “periodicals” and subjected them to the regime specific to these. In this way internet news sites, too, have been brought under supervision.

The term over-the-top service provider refers to applications such as “Whatsapp”, “Signal”, “Telegram” and “FaceTime”, which have passed into everyday language as instant messaging. With the amendments made to Law No. 5809 by Law No. 7418, these applications, too, have been brought under statutory regulation.

This provision gives the BTK the right to take any kind of action with regard to instant messaging applications. For all the regulations necessary for them to provide services will be made by the BTK, and if these regulations are not complied with, the services they provide will be blocked. A further point that emerges from this paragraph is that these applications may be operated only if they obtain authorisation from the BTK. If this authorisation is not obtained, the services they provide will likewise be blocked. In addition, the paragraph confers on the BTK the power to take all the measures necessary for this blocking to be carried out and to impose obligations. The BTK has thus assumed the role of a sword of Damocles hanging over instant messaging services. The explanatory memorandum to the Law, for its part, states that this “may constitute unfair competition for operators offering similar services”. Frankly, everyone knows for what purpose this paragraph was introduced. For when there is no company in Türkiye offering such a service, it is not the task of our country’s legislature to regulate competition between foreign companies. The explanatory memorandum to the Law or, to put it more accurately, its “lack of reasoning/fabricated reasoning” clearly shows us for what purpose this paragraph was introduced.

Today most people, including those living in our country, communicate through the instant messaging applications mentioned, in writing, visually and live by video and voice. Naturally, the records of these communications, and sometimes even their content, are held on the servers of these applications. Now that all powers concerning these applications have been conferred on the BTK, the BTK will, by means of the obligations and measures it deems appropriate, put pressure on the companies that own or operate these applications, try to obtain this information which it has so far been unable to obtain, and try to take away people’s freedom in this field as well. The repressive regime and the anti-democratic laws and practices that have made themselves ever more strongly felt in our country in recent years give us no data at all that would allow us to say otherwise. The purpose of this provision will therefore be understood even better later on. In any case, this paragraph is in complete contradiction with the principle of “privacy”, which is the very purpose for which the software in question came into being. This alone shows the anti-democratic character of the provision.

With this provision, all the strings of communication carried out over the internet are placed in the hands of the BTK. This is a provision that is compatible neither with the distributed (non-centralised) structure of the internet, nor with the philosophy behind the emergence of the internet, nor with the technical characteristics of these applications. If there is a genuine wish to apply this provision, that wish will mean that the applications in question cannot be used in Türkiye. Indeed, from paragraphs 16 and 17 added to Article 60 of Law No. 5809 it is readily understood that the legislature genuinely does not want these applications to be used in our country, that this is its aim, and that it has prepared the statutory (but not the lawful) groundwork for this. What is in fact sought to be restricted is not the applications but freedom of expression and the right to receive information, which are among the most important requirements of a democratic regime.

In short, the communication applications that everyone uses today will either be able to continue their activities by setting up a company in Türkiye, in the manner determined by the BTK and by sharing all kinds of information with the BTK, or will run the risk that their bandwidth will be almost entirely restricted and the public thereby prevented from using these applications. In other words, it is once again the public that is made to foot the bill. A sanction of this kind can be seen only in anti-democratic, repressive regimes. In countries such as Türkiye, which claim to have a democratic regime, there should be no such provision; or else Türkiye must face the facts and finally realise what kind of regime it has!

In conclusion, it can also readily be said that, if these regulations are used not by those in power to muffle the voice of the opposition but for the purpose of enabling persons whose personality rights have genuinely been infringed to exercise their rights, this is a positive regulation. However, it is a known fact, based on historical experience, that in our country regulations of this kind are used not to enable right-holding individuals to protect their rights but, as a cover and to that end, by those in power and by interest groups in order to silence dissenting voices and protect their own interests. We hope that this time we shall be proved wrong.