Our Opinion on the Draft Social Media Law

To the Public of the Republic of Türkiye

28 July 2020

Our Opinion on the Social Media Bill Submitted to the Grand National Assembly of Türkiye

The “Bill for a Law Amending the Law on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications”¹, submitted to the Grand National Assembly of Türkiye (TBMM), provides for a definition of social network providers; for foreign-based social network providers with more than one million daily accesses from Türkiye to open a representative office in Türkiye; and for the imposition, on social network providers that fail to fulfil the obligation to open a representative office, of sanctions such as, at the first stage, ten million Turkish liras, and thereafter thirty million Turkish liras, an advertising ban and the throttling of internet bandwidth by up to ninety per cent.

The proposed amendment, which will essentially have an impact on social media, has been under discussion for a considerable time. To this end, a proposal for amendments along similar lines was first put forward in Omnibus Bill No. 7244; that proposal came to be known publicly as the “WhatsApp Law”, met with widespread protest and was subsequently removed from the bill. Thereafter, twelve rules were announced to the public under the name “Social Media Ethics Rules”. On 21.07.2020 a new bill was submitted to the Office of the Speaker of the TBMM; it was adopted by the TBMM Justice Committee on 24.07.2020 and placed on the agenda of the Assembly.

OUR ASSESSMENT

The bill seeks to amend Law No. 5651 on the Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications² (the Internet Law). It is seen that the principal reason given for the amendment is that “despite their vast numbers of users and the billions of dollars of revenue they derive from user data, social network providers have not developed, or do not effectively use, the preventive and protective mechanisms needed for the protection of individuals’ rights, or else resist the legitimate requests of states (…) difficulties are experienced in fulfilling the positive obligation incumbent on states with regard to the protection of fundamental rights and freedoms”. As the conclusion to be drawn from the explanatory memorandum, it is understood that the rules introduced for social network providers are intended to ensure that the state fulfils its positive obligations of prevention and protection towards individuals whose personality rights have been infringed. Unfortunately, however, it is seen that what the bill actually does is to “besiege”, by means of legal regulation, the internet and social media – which have today become the most important source of information and news – and that it contains a series of disproportionate sanctions which result in obstructing individuals’ freedom of expression and right to receive information.

What the bill seeks to change is explained in detail below.

What Does the Amendment Introduce?

I. Definition, Meaning and Scope of the Concept of Social Network Provider

The first (proposed) amendment to the Internet Law adds the concept of “social network provider” to the law. Accordingly, social network providers are defined as “natural or legal persons who enable users to create, view or share data such as text, images, sound and location on the internet for the purpose of social interaction”. At first sight, the expression “social network provider” gives the impression that it covers only social media platforms. On that reading, social media platforms such as Facebook, Twitter, Instagram and TikTok fall within its scope. However, it is observed that the definition has been drafted very broadly. First, the question whether communication-based applications such as WhatsApp, Telegram and Skype can be regarded as social network providers must be addressed.

The following question must be answered first: are WhatsApp or similar “instant messaging” applications social media platforms? No, WhatsApp is not a social media platform. For WhatsApp is used rather for communicating and talking, and serves telecommunication purposes. In this respect it is not, like Facebook, Twitter or Instagram, an application in which posts are opened up to social interaction and which is intended for sharing. These features take it out of the category of social media platforms.

The fundamental question, on the other hand, must be whether it will be regarded as such under the Law. When we examine the definition, the expression “for the purpose of social interaction” catches the eye. Accordingly, media on which data such as text, images and sound can be created, shared or viewed on the internet for this purpose are each regarded as social network providers.

First of all, while the definition is excessively broad, the expression “social interaction” is excessively vague. We wish to stress in particular that this definition seems to have been drafted not to remain confined to social media but, as it were, to besiege all the “fortresses” of the internet realm. Today everything can be counted as falling within social interaction: talking to a friend while walking down the street may be a social interaction, and sending someone a letter, or your WhatsApp correspondence – which is in essence a digital form of the letter – may likewise be regarded as falling within this scope. For this reason, what is to count as social interaction is of great importance. In any event, we find it hard to understand why a separate definition was felt to be needed for social media platforms, which already fall within the category of “hosting provider” defined in the Internet Law, and we therefore approach this definition with suspicion. The definition is so broad that it is even possible for the websites of media organisations which today open the space beneath their news items or columns to comments to fall within this scope and be regarded as social network providers.

However, WhatsApp and communication tools of this kind must not be regarded as social network providers. Corresponding with a person or a group should not be regarded as social interaction, because here individuals communicate among persons whom they themselves are able to determine. The expression “social interaction” should be interpreted narrowly; what should be counted as falling within it is individuals opening their data, such as text, sound or images, to sharing by an indeterminate number of persons and aiming at interaction in that sense. In other words, only social media platforms in the true sense should fall within this scope. Otherwise, every corner of the internet could be regarded as a “social network provider” under the head of data sharing and social interaction.

Our answer, then, is that media other than social media platforms, such as WhatsApp, are not social network providers and should not fall within the scope of this Law. We must nevertheless state, insistently and with emphasis, that this definition must be changed. If the aim of the Law is to create a separate concept for social media, this definition overshoots its purpose.

When regard is had to the definition in the German Network Enforcement Act (Ger. Netzwerkdurchsetzungsgesetz), which was specifically taken as the model for this bill – a point that is indeed stated in the explanatory memorandum of the proposed amendment –, it is seen that social network providers are defined as “internet platforms which, with the intention of making a profit, are designed to enable users to share any content with other users or to make such content available to the public”. As will be seen, under the German Act a social network provider must pursue a profit-making purpose and include the feature of enabling any content to be shared publicly. Unlike the bill submitted in our country, these two criteria make it possible to distinguish a social media platform from an ordinary web page. There is thus a difference of this significance between the regulation said to have been taken as the model and the bill submitted.

II. The Liability Regime Imposed on Social Network Providers

Now that social network providers have been explained and, “in our view”, limited to social media platforms, the responsibilities imposed on them must also be assessed. The most important responsibility appears to be that social media platforms of foreign origin with more than one million daily accesses are obliged to have a representative in Türkiye.

Accordingly, platforms such as Facebook, Twitter, Instagram or TikTok, whose headquarters are in countries such as the USA and China, must come to Türkiye and open an office and a representative office. What, then, will these representative offices be dealing with?

First of all, representatives have been made responsible for dealing with requests for the removal of content and the blocking of access made on the basis of Article 9 of the Internet Law. Requests concerning violations of personality rights and the right to respect for private life must be answered by the representative offices within 48 hours. In addition, the representative offices have been placed under an obligation to keep records of the applications made directly by individuals or to be resolved by decisions of the criminal judgeships of peace, and to submit three-monthly statistics on these to the Information and Communication Technologies Authority (BTK) in the form of a report.

It is also seen that the bill does not address the legal status of the representative offices. As is known, in Turkish law companies that have their headquarters abroad and a point of contact in Türkiye may have statuses such as that of a liaison office under the Implementing Regulation of the Foreign Direct Investment Law No. 4875, or of a branch, dealership or commercial representative under the Turkish Commercial Code No. 6102. However, answers to questions and problems such as what capacity the representative offices envisaged in the bill will be subject to, their financial responsibilities, their tax duties, their personnel regimes, the capital to be allocated to them and their management, their legal responsibilities and how the penalties will be enforceable cannot be obtained directly from the bill, and this creates a serious problem of uncertainty and foreseeability.

In addition to these, a further, very important provision is the introduction of a requirement for these social networks to store user data in Türkiye. Accordingly, servers must be maintained in Türkiye and the data of users in Türkiye must be kept on those servers. The most important consequence of this is the following: Article 332 of the Code of Criminal Procedure (CMK) provides that, during the investigation or prosecution of offences, public prosecutors’ offices and courts may request information from such institutions, organisations and persons as they see fit. According to that provision:

“It is mandatory to reply within ten days to information requested in writing by the public prosecutor, judge or court during the investigation and prosecution of offences.”

The situation should be made concrete with an example. For instance, it is alleged that, on a platform such as Twitter, where anonymity is to the fore, the offence of “inciting the public to hatred and hostility” (Art. 216 of the Turkish Criminal Code, TCK) – highly popular these days and one into which virtually every dissenting statement is subsumed – has been committed through an anonymous account. In the investigation opened in this context, the prosecuting authorities, wishing to learn the identity behind this anonymous account – that is, to identify their suspect –, will apply to Twitter’s representative office in Türkiye. Twitter, for its part, will find itself obliged to share the “user data” it holds in Türkiye, since otherwise it would be acting in breach of the provision on requests for information. Failure to reply to a request for information, moreover, may constitute the offence of abuse of office on the part of the Turkish representative offices.

Before this regulation too, public prosecutors’ offices and courts used to request from these companies information relating to the adjudication of offences committed via social media platforms. However, as these companies are based in the USA, it was not possible to find an interlocutor or obtain a reply. The proposed amendment now put forward is intended to ensure that these companies have an interlocutor in Türkiye.

This situation in a sense lays bare the effects that the proposed amendment of the Law will produce. By means of the amendments, platforms such as Twitter and Facebook may be forced to cooperate with state institutions, anonymity on social media may be brought to an end, individuals may be profiled and, by giving rise to self-censorship, dissenting voices may be prevented from being raised on social media… This matter may be read either as the aim underlying the bill or as an area left open to abuse. If the news reports and opinions published on the subject are examined, it can be seen that the public more widely accepts the first of these readings.

III. Sanctions to Be Applied to Social Network Providers Where They Fail to Fulfil Their Obligations

Social network providers that meet the conditions will be notified by the BTK and requested to appoint a representative. The sanctions provided for in the event of failure to fulfil this obligation are listed as follows:

i. If the social network provider does not fulfil this obligation within 30 days of service of the notification to be made by the BTK, an administrative fine of 10 million Turkish liras will first be imposed on it;

ii. If this obligation is not fulfilled within 30 days of service of the administrative fine, a further administrative fine of 30 million Turkish liras will be imposed;

iii. If this obligation is not fulfilled within 30 days of service of the second administrative fine, the President of the BTK will prohibit taxpayers who are natural or legal persons resident in Türkiye from placing advertisements with the social network provider (advertising ban);

iv. If this obligation is not fulfilled within 3 months of the date on which the advertising ban decision is issued, then, by a decision to be given by the criminal judgeship of peace upon application by the President of the BTK, the internet traffic bandwidth of the social network provider will be throttled by 50 per cent;

v. If this obligation is still not fulfilled within 30 days of the implementation of the first bandwidth-throttling decision, then, by a decision to be given by the criminal judgeship of peace, the internet traffic bandwidth of the social network provider may be throttled by up to 90 per cent.

First, the administrative fines provided for where a social network provider fails to fulfil this obligation are very high. If, in addition to the 10 million, the administrative fine of 30 million Turkish liras is also imposed, a fine totalling 40 million TL will be at issue. Thereafter, by the introduction of the advertising ban, the intention has been to prevent social network providers that fail to fulfil the obligation to appoint a representative from making any economic gain whatsoever.

The throttling of internet traffic, for its part, means that it will not be possible in any way to access these sites from Türkiye. In other words, the route of reaching websites blocked from Türkiye by means of services such as VPNs, as was done in the past, will have been cut off. With the throttling of bandwidth, these sites will be slowed down to such an extent that they can no longer be entered from Türkiye at all. Consequently, social media platforms that do not appoint a representative “will have the plug pulled on them”.

Once these platforms appoint a representative, however, this throttling will automatically cease to have effect. Likewise, only one quarter (1/4) of the administrative fines will be collected and the advertising ban will also be lifted. In that case, it may be observed that certain platforms which initially fail to comply with this notification cannot be accessed, and that subsequently these platforms suddenly become accessible because the representative has been appointed.

The following point must be discussed under this heading: is such a sanction (throttling and rendering inaccessible from Türkiye) proportionate, is it legitimate, is it lawful? Here we are faced with conflicting and competing rights (interests). Twitter, for instance, is a platform from which everyone obtains news, information and opinions and on which everyone also personally shares such content. The existence of these platforms therefore rests on freedom of expression, on the right to impart news and on the public’s right to receive news and to be informed. Today, the arbitrary closure of sites such as Twitter or Wikipedia without any reasons being given would be absolutely contrary to law and to the Constitution. Indeed, as is known, the access-blocking decisions concerning these internet platforms were set aside by the Constitutional Court and held to constitute a violation.

The throttling decision, however, will not be taken without a reason; the reason for the decision is non-compliance with the obligation “to designate and notify a representative”. The representative’s task, in turn, is to respond to applications concerning personality rights. It follows that personality rights conflict with freedom of expression and the right to receive information. In this conflict, it is individuals’ freedom of expression and right to receive information that must prevail. For where no representative has been appointed and a site is rendered inaccessible on that account, there has as yet been no attack on any personality right. Moreover, in order to prevent an attack on personality rights it is sufficient to remove only the content in question; rendering the site inaccessible in its entirety would not be proportionate. Consequently, to apply a sanction that could not be applied even if an attack existed, on the ground that a mechanism (the representative office) capable of eliminating a possible attack has not been set up, is unlawful; it is not permissible.

In addition, it must be recalled that these social media platforms are already covered by the law as “hosting providers” and that, as matters stand and even if the proposed amendment is not adopted, they are able in that capacity to remove from access texts, sound or images containing an attack on personality rights. In other words, under the existing system personality rights can be protected even without a representative; to render a site inaccessible and to abolish the freedom to receive information merely in order to strengthen that protection through the appointment of a representative is unlawful.

This provision too must therefore be amended and revised; otherwise it may become the subject of annulment proceedings before the Constitutional Court. To force social media platforms to open a representative office under threat of a sanction that would make it impossible for them to continue operating in Türkiye would be contrary to law and to the Constitution.

OUR RECOMMENDATIONS

1. The definition of social network providers should be changed and narrowed so as to cover only social media

platforms. Otherwise, the websites of press organisations which open the space beneath their news items or columns to their users’ comments, forum sites which serve the purpose of enabling users to buy and sell products, and even the sections called “chat” on websites where games are played live over the internet – on all of which content is shared for the purpose of “social interaction” – may be regarded as falling within the scope of social network provision. Here, as in the German Social Media Act, which is stated to have been taken as the model, the concept of social network provider should be confined to social media platforms by expressly laying down criteria such as “the feature of public sharing” and “pursuit of profit”. If the aim of the Law is to create a separate concept for social media, this definition overshoots its purpose.

2. The obligation for social network providers to store user data in Türkiye

should either not be introduced at all or be regulated in such a way that individuals have no doubts about their own privacy. For the introduction of this obligation may serve the purpose of profiling individuals and putting an end to anonymity on social media. The storage of user data in Türkiye is highly open to abuse. Today, unfortunately, every kind of dissenting or contrarian opinion can be treated as falling within the “offence of inciting the public to hatred and hostility” (Art. 216 of the Turkish Criminal Code, TCK), and criminal investigations can be opened against those who express them. In such an eventuality, it will become possible for the prosecuting authorities and the courts, by means of a “Request for Information” (Art. 332 of the Code of Criminal Procedure, CMK), to gain access to every kind of user data of individuals through the representative office and the servers in Türkiye. In most cases this will prevent individuals from “hiding” behind anonymous accounts in order to violate the personality rights of others or to commit offences. Where prevention fails and the said violation occurs or an offence is committed, it will likewise make it possible to identify and punish the perpetrators. However, at the same time it will also make it possible to identify persons who, on account of political pressures, do not openly display on their profiles information through which they could be directly reached, or who use anonymous accounts. By leading to self-censorship, this may have an adverse effect on freedom of expression.

3. Where the obligation to appoint a representative is not fulfilled, the envisaged

sanction of internet bandwidth throttling is disproportionate. For this reason, the sanction of bandwidth throttling should not be provided for at all. For the new regulation that needs to be made by way of amendment, the German Social Media Act may once again be taken as a model. When that act is examined, it is seen that there too an “obligation to appoint a representative” exists (see Netzwerkdurchsetzungsgesetz §5) and that, where this obligation is not fulfilled, only an administrative fine may be imposed. The administrative fine provided for in that case, moreover, has been kept lower than for the other grounds for imposing an administrative fine; it is limited to 500 thousand euros. On the other hand, where a social network provider fails to fulfil its other obligations, an administrative fine of up to 5 million euros may be imposed on it. The point to be made here is that, in the German regulation, breach of the obligation to appoint a representative is plainly conceived as a lighter infringement than the others. In the proposal sought to be introduced in our country, by contrast, failure to fulfil the obligation to appoint a representative entails very severe sanctions such as 40 million Turkish liras, an advertising ban and the rendering of the site inaccessible by throttling internet bandwidth by up to 90 per cent. Quite apart from the fact that the administrative fine and advertising ban provided for are disproportionate, rendering the site inaccessible by throttling bandwidth constitutes an interference with individuals’ freedom of expression and right to receive information. Such an interference is, moreover, disproportionate. For failure to fulfil the obligation to appoint a representative will mean no more than that a mechanism for remedying violations – one able to remove content that may constitute a violation of personality rights or an offence, and subject to liability in damages or criminal liability after the attack – has not been set up. Not appointing a representative therefore does not constitute an attack on personality rights or an offence; it merely raises the possibility that, in the event of such an act, its consequences will not be removed. Moreover, in order to prevent an attack on personality rights it is sufficient to remove only the content in question; rendering the site inaccessible in its entirety would not be proportionate. In conclusion, to apply a sanction that could not be applied even if such an attack existed, on the basis that a mechanism (the representative office) capable of eliminating a possible attack has not been set up, is unlawful and disproportionate.

CONCLUSION

Our country unfortunately does not have a good record as regards freedom of expression and internet bans. According to a recent study, as at the end of 2019 access had been blocked in our country to 408,494 websites, 130,000 URLs, 7,000 Twitter accounts, 40,000 tweets, 10,000 YouTube videos and 6,200 items of Facebook content³. Unfortunately, ever since 2007, when Law No. 5651 was enacted, we have been witnessing the establishment by that Law of a restrictive structure, rather than a regulatory (regulative) one, over the internet environment. To see something similar happen to social media as well would mean that no environment at all is left in which individuals can, with the means currently available, express themselves freely. This situation may of course give rise to new platforms and new tools of interaction, examples of which can be found in countries such as China and Iran. But becoming a new Iran or China also points to the sad position into which our country is falling in terms of law, democracy and freedoms.

In truth, the bill, in sum, contains many provisions that are disproportionate, unlawful and constitute an interference with human rights. The public, ourselves included, is for this reason reacting against and criticising the bill. On the other hand, there is indeed a reasonable need for regulation: in the case of attacks on personality rights and offences committed via foreign-based social media platforms, it is not possible in practice to enforce access-blocking decisions, and where the persons carrying out the acts are anonymous they cannot be reached. However, the regulation, which ought to pursue the aim of meeting this need and of enabling the state to fulfil its positive obligations, also contains many obligations and sanctions that go beyond that aim and are disproportionate. Furthermore, bearing in mind our country’s “struggle” with the internet and given that the existing rules are open to abuse, we must state that the bill is very far from having a content that is limiting and foreseeable.

The regulation in Germany was introduced under the influence of the refugee crisis, which intensified from 2016 onwards, with the aim of “ensuring that neo-Nazis and the far right of every kind do not exert an adverse influence on the public, and preventing hate speech”. Yet even the German regulation taken as the model, although it contains lighter conditions than the bill submitted in our country, was heavily criticised by the public. Moreover, that regulation was adopted towards the end of 2017, and it cannot be said that its consequences have yet been fully grasped in Germany either. In the regulation proposed in our country, by contrast, although there is at present no such urgent need or current crisis in the matter of hate speech, the bill provides for far heavier obligations and sanctions for social network providers. Almost all social media platforms – or, if the scope is interpreted broadly, other websites on which “social interaction” takes place – will, where they have no representative office in Türkiye, as the ultimate sanction “have the plug pulled on them”.

In conclusion, the proposed amendment contains many disproportionate provisions that are contrary to fundamental rights and capable of having an adverse effect on freedom of expression and the right to receive information. If the bill is enacted in its present form, either social media platforms that do not open a representative office in Türkiye will be rendered wholly inaccessible or, if they do open one, an environment will arise in which individuals doubt their own privacy and security, self-censorship will result and no medium will remain in which relatively divergent views can make themselves heard freely. Yet divergent views, freedom of expression and the forum for debate in which expression finds its place constitute the basic working mechanism of modern democracies. In the Information Age of the 21st century, our thoughts and our democracy, like the whole of our lives, have been digitalised. What is needed is not to restrict these thoughts but to understand them and to bring them into the richness of the decision-making mechanism. This proposed amendment, known to the public as the “Censorship Law”, must not be enacted in its present form. Even if there genuinely is a need to find an interlocutor for requests directed at social network providers, amendments should be made that address that need alone and are in line with our recommendations. While this bill is being debated, the stakeholders in the matter should come together and be given a setting in which to reflect jointly on the problems and their solutions. Every kind of law that would “censor” the internet, and a law-making technique in which no forum for debate is provided, harm our democracy. Although, unfortunately, the opposite of both is more often encountered in our country, we hope that, just as the proposal submitted within the Omnibus Bill in March of this year was withdrawn, this bill too will be withdrawn and that a proportionate and more appropriate proposal, limited to what is needed, will be submitted.

We wish to state that, in these critical days – when, in addition to the health problems brought by Covid-19, we need to focus on combating the problems that the strict measures and restrictions adopted in our country and around the world have caused in our economy and social life, on keeping businesses going, on curbing the extraordinary rises in unemployment, on enabling those left without work and income to sustain their lives, and on keeping the wheels of the economy turning – we regard the changing of the agenda with this subject as unhelpful for our country and a waste of energy.