The Social Media Law Has Passed Parliament: What Now?

Murat Volkan Dülger^* / Onur Özkan^*

Known to the public as the “Censorship Law”, introducing rules aimed at social media and amending Internet Law No. 5651¹, Law No. 7253² was adopted by the Grand National Assembly of Türkiye (TBMM) on 29.07.2020. In this short article we shall try to explain what the amendments introduce, and to assess why they are highly objectionable, in what respects they differ “for the worse” from the regulation in Germany that is said to have served as the model, and whether they are contrary to the Constitution.

Legal regulations that would essentially have an impact on social media have 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. The proposal was adopted by the Assembly and became law on 29.07.2020.

Under the Law, the Internet Law is amended so that the concept of social network provider is introduced and defined; foreign-based social network providers with more than one million daily accesses from Türkiye are placed under an obligation to open a representative office in Türkiye; and, for social network providers that fail to fulfil this obligation, sanctions are laid down in the form of, 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 general explanatory memorandum of the Law states 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”. On this account, the amendment aims, through the rules introduced for social network providers, to have the state fulfil its positive obligations of prevention and protection towards individuals whose personality rights have been infringed. However, when the content of the law is examined, it will be seen that, in a manner going beyond this aim, the internet and social media – which have today become our most important source of information and news – are being “besieged” by means of legal regulation, and that the law contains numerous disproportionate sanctions which result in obstructing individuals’ freedom of expression and right to receive information.

What Are the Amendments?

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

By the first amendment made to the Internet Law, the concept of “social network provider” has been added to the Law and a definition of this concept has been given. According to that definition, social network providers are:

“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”

That is how the term is defined. 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, the definition has been drafted so as to embrace a wide scope and is, in this respect, a problematic provision. Under the question below we shall assess the content of the definitional provision and explain how the term is defined in the German act which, in comparative law, is said to have served as the model for this regulation.

Can “WhatsApp” Be Regarded as a Social Network Provider?

To answer this question, an answer must first be sought to the following one: 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, is 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.

In our view, however, WhatsApp and communication tools of this kind should 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, must be: “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 is problematic. If the aim of the Law is to create a separate concept for social media, this definition overshoots its purpose.

When the definition in the German Network Enforcement Act (Ger. Netzwerkdurchsetzungsgesetz) is taken into account – an act which was specifically taken as the model for the regulation, as is also stated in the explanatory memorandum of the law –, 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 regulation enacted 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 regulation enacted in our country.

When the German act is examined, it is not possible for WhatsApp, Skype or other programs or websites which are not in essence social media platforms but are used by large numbers of people for various reasons to be regarded as “social network providers”. For this possibility has been eliminated precisely by the addition of a number of limiting criteria to the definitional provision. In the regulation enacted in our country, by contrast, not only have no such limits and criteria been included, but a definition has been attempted by means of a concept of indeterminate content such as “social interaction”. Indeed, following this definition, digital media of every kind, whether or not they are social media platforms, may be regarded as falling within its scope. For example, Netflix, with its “Netflix Party” application, enables its users to watch visual content such as films, series and documentaries simultaneously while messaging one another (chat), while Spotify, with “Friend Activity”, allows its users to share with one another the music tracks they are listening to. Are Netflix and Spotify, then, also social network providers? Of course they ought not to be regarded as such.

II. Obligations of 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 is that social media platforms of foreign origin with more than one million daily accesses are obliged to have a representative in Türkiye. Where the representative is a natural person, he or she must be a Turkish citizen.

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. If the request is not to be met and a negative reply is to be given, that decision must be “reasoned”. Indeed, when even the criminal judgeships of peace are unable to give reasons for the access-blocking decisions they issue, how are representatives who are not – and are not required to be – judges or lawyers to write reasons for the hundreds, perhaps thousands, of requests arriving each day, and within a period as short as 48 hours at that? Moreover, a decision to block access / remove content from publication is a decision that restricts individuals’ freedom of expression, whereas not taking such a decision (a negative reply) is not a restrictive decision. Yet the legislature, while not requiring reasons to be written for the restrictive decision, imposes a duty to give reasons for a decision that does not remove the content and does not interfere with freedom of expression. In this respect too, it reflects the “current outlook” on individual rights and freedoms. No reasons are required for interferences with freedom of expression, but reasons must be given for not interfering!

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.

The figure of “one million” laid down as the daily access criterion also calls for comment. According to one view, a criterion of more than one million daily accesses is inappropriate and should be brought down to a lower daily access criterion, such as 500 thousand, because violations of personality rights occur and offences are committed on platforms with fewer than 1 million daily accesses as well. In our view, however, this opinion is not well founded. It is indeed true that offences are committed and personality rights violated in every corner of the internet. But extending the obligation to open a representative office should not be thought of as something that would result in such acts being prevented or, where they do occur, in their consequences being enforced.

For, in the first place, even if no representative offices are opened, there exists an obligation to implement the access-blocking decisions issued by the criminal judgeships of peace and, as a hosting provider, an obligation to remove unlawful content from publication. In the second place, even if representative offices are opened, the legislature – as we shall see below – has attached a sanction only to the failure to notify a representative; as regards obligations such as the blocking of access / removal of content, the “social network provider” too is subject to the sanctions applicable to an ordinary hosting provider. Consequently, while the opening of a representative office does not mean putting an end to unlawful content in the internet realm, the sanction of internet bandwidth throttling to be applied where such an office is not opened will cause many of the sites we visit on the internet to become inaccessible and thus the internet to become almost entirely unusable. Moreover, to advocate the wider application of so restrictive a responsibility and sanction would mean that the adverse effects of the Law would be felt far more intensely and the interference with fundamental rights and freedoms would be intensified. Furthermore, even if it is said that “social network providers” with more than one million daily accesses can bear the economic burden of opening a representative office in Türkiye in order to continue their activities, lowering this criterion further would create unequal conditions for smaller-scale websites and internet media.

Nor does the law 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, the fact that the law gives no direct answer to questions and problems such as what capacity the representative offices introduced by the law 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 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.”

Let us make the situation concrete with an example. Suppose, for instance, that in an environment such as Twitter, where anonymity is to the fore, it is alleged that the offence of “inciting the public to hatred and hostility” (Art. 216 of the Turkish Criminal Code, TCK) – 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, on the part of the Turkish representative offices, the misdemeanour of non-compliance with an order (Art. 32 of the Misdemeanours Law). Since representatives are not public officials, the offence of abuse of office (Art. 257 TCK) will not be made out.

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 amendments made are 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.

III. Sanctions Applicable to Social Network Providers

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.

Is the Social Media Law Unconstitutional?

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 a site is rendered inaccessible because no representative has been appointed, 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 contrary to law and to the Constitution; 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 no amendment had been made, 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. For it constitutes a clear interference with freedom of expression and the right to receive information, and that interference is disproportionate. 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.

What Should Change, and Why Do We Criticise?

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. At the same time, however, 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. The sanction of internet bandwidth throttling provided for where the obligation to appoint a representative

is not fulfilled 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 regulation enacted 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.

4. 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 despotic and restrictive structure 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 regulation, in sum, contains many provisions that are disproportionate, unlawful and constitute an interference with human rights. For this reason the public, ourselves included, is reacting against and criticising the regulation. 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 law is very far from having a content that is limiting and foreseeable.

It is not only what the amendment is, but also how it was made, that is a major problem. This strategy of governance must be abandoned and fair and transparent governance must prevail; such important amendments must be opened to the attention and scrutiny of as many people as possible, and democracy and a forum for debate must be ensured. This is how modern democracies are governed.

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 law enacted 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 our country, by contrast, although there is at present no such urgent need or current crisis in the matter of hate speech, the regulation 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 amendment has introduced, in respect of social media, 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. Under the law, 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. Social media, the only platform on which individuals have been able to voice their thoughts with relative freedom, will no longer be what it was. Unfortunately, if we do not speak now, we shall not find a platform on which to speak again. From now on, either we are many-voiced or we shall be buried in silence!