Tabled by ruling party AKP and ally MHP, the controversial legislation forces social media companies to appoint legal representatives and keep user data in Turkey

 

A controversial bill widely feared to increase censorship and expand government control on social media was presented in Parliament on 21 July, weeks after President Recep Tayyip Erdoğan called for social media to be “completely shut down, brought under control.”

 

The nine-article bill, signed by lawmakers from Erdoğan’s Justice and Development Party (AKP) and its ally Nationalist Movement Party (MHP), is expected to be swiftly processed in Parliament and become law in coming days, given the clear majority held by the two parties in Parliament.

 

The bill, is expected to force the social media companies to better cooperate with judiciary and state institutions in censoring content that expresses criticism of government actions or tackle corruption. If enacted, the legislation will make it compulsory for social media companies based outside of Turkey and have more than one million reach from Turkey daily to have a legal representative in Turkey and to keep data on their users from Turkey locally. They will also be held liable in case of failure to comply with court orders to ban access to or remove content.

 

On 1 July 2020, Erdoğan, reacting to “insults” on social media targeting his daughter Esra Albayrak, son-in-law Berat Albayrak and their newborn baby, had said in a televised appearance: “Do you now understand why we are against YouTube, Twitter, Netflix and the like? It is because we want to eliminate this kind of immorality. […] We will swiftly bring this [legislation] before the Parliament and we want our Parliament to completely shut down, bring these [platforms] under control.” He added: “We are working on a comprehensive legislation in this regard. Once it is completed, we will put in place all methods [of regulating social media] including access restrictions and legal and financial sanctions. Turkey is not a banana republic.”

 

The bill introduced in Parliament on 21 July contains measures similar to an earlier proposal that was added into an omnibus bill in April but was later withdrawn without an official explanation. The bill proposes amendments to Turkey’s current Internet law, the Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication.

 

The first article of the bill sets a legal definition of “social network provider” as “individuals or institutions who enable users to create, view or share content online, including text, visual, sound or location.” This brings popular social media companies including Twitter, Facebook, YouTube or Instagram under the purview of the Law No. 5651.

 

The proposal also foresees drastic increase in the amount of fines that can be imposed on social media companies for “failing to comply with its obligations” set by the Law No. 5651. According to the bill, administrative fines that can be imposed on social media companies can range from 1 million liras (over 126,000 euros) to 10 million liras (1.26 million euros), up from the existing 10,000 to 100,000 liras.

 

Content removal: Archives to be wiped clean

 

The bill proposes that, in addition to blocking access to “criminal” content, courts will also be able to issue orders for removal of such content and that these orders will be formally communicated to the relevant social media company for implementation.

 

The government claims that “this way, freedom of expression and right to information will be safeguarded in regard to the content featured on the same website and is not criminal.” However, critics warn that this provision will also have an effect on past content, particularly news content about corruption allegations or content critical of the government, and that this way the government will not only be able to block such content but wipe the entire online archive clean of content critical of the government.

 

Commenting on the draft law, Professor Yaman Akdeniz wrote that the government’s main intention behind the draft law was “to clean its past from critical content, including news coverage of corruption allegations as well as all sorts of irregularities.” Noting that blocking access to online content in Turkey is a one-sided mechanism, Akdeniz stressed that all politically motivated requests to block access to websites and content are accepted by criminal judgeships of peace while almost all appeals are rejected, and that the only option to seek remedy against those decisions -- the Constitutional Court -- usually takes about five years on average to render a judgment concerning access blocking applications.

 

The provisions in the draft law also include what is referred to as “right to be forgotten.” According to the government, the grounds for this provision is that even though a certain content is blocked for access by authorities for “violating an individual’s personal rights,” that person’s name still appears in an online search because search engines list their names under related content and that therefore the violation is not fully remedied. Critics warn that in practice, the “right to be forgotten” will again be exploited to prevent access to content critical of the government or unfavorable news/information.

 

“If this draft becomes law, both the Internet and politics in Turkey will be wiped completely clean,” Akdeniz wrote.

 

Sanctions for platforms that fail to assign a local representative

 

A major proposal in the draft law is that social media platforms that have over 1 million daily reach from Turkey establish local offices in the country and appoint local representatives who will be legally responsible for the implementation of formal notifications, requests or orders issued by Turkish authorities and will be tasked with responding to individual applications claiming a violation of their privacy or their personal rights.

 

The representative to be appointed will have to be a Turkish citizen and their contact info will be made public. This information is required to be easily accessible and provide direct access to the representative.

 

Social media platforms that fail to assign a local representative will face five levels of sanctions that will gradually increase at each step. Accordingly, a social media company that fails to assign a representative and inform authorities of this appointment will be initially issued a warning by the Information and Communication Technologies Authority (BTK). If the company fails to comply within 30 days of the warning, they will be given an administrative fine of TL 10 million. If they fail to comply within 30 days of the initial fine, they will be given an additional fine of TL 30 million. The next level of sanctions will be an online advertisement ban on the company for three months. If the company has still not assigned a representative in the three months that follow the imposition of the advertisement ban, the local bandwidth of the social media platform will be restricted by 50 percent by order of a criminal judgeship of peace. If the requirement is not met within 30 days of the initial bandwidth restriction order, the platform’s local bandwidth will then be reduced by up to 90 percent. Service providers will be required to implement all orders for bandwidth restriction in a maximum of four hours.

 

Providers will be required to respond to complaints within 48 hours

 

The legislation also imposes on social network providers the obligation to respond to user complaints submitted concerning content that allegedly violates personal and privacy rights within 48 hours. The social network providers will be required to present an explanation, in case they reject the complaint submitted. Social media companies that fail to fulfill it will be given a fine of 5 million Turkish lira. Social media platforms will be given a 3-month period to prepare for this obligation following the entry into force of the proposed law.

 

Social media platforms will also be required to submit statistical reports showing what percentage of the decisions by the judicial or the administrative bodies and user requests are implemented and the amount of time taken before the requests are reviewed. The reports will be submitted every six months and in Turkish. According to the proposed bill, the first report will be published in January 2021. If the platforms fail to fulfill this requirement, they will face a 10 million Turkish lira fine.

 

User data to be stored in Turkey

 

Another regulation introduced with the draft law is that social network providers will be obliged to store data belonging to their users from Turkey in Turkey. Critics are concerned that the regulation is going to make it easier for authorities such as prosecutors or state bodies including the intelligence organization to access user data, which is likely to bring an increase in the number of criminal prosecutions against social media users.

 

Legal liability for social media platforms

 

The legislation states, additionally, that “If content determined to be unlawful by a judgeship or court ruling is reported to the social network provider, the social network provider that fails to remove or block access to the content within 24 hours upon the order will be obliged to compensate the damage that thereby arises.” This implies that if social media platforms do not comply with judicial decisions, they may face lawsuits and may have to block access to or remove content.

 

Expected to pass before the end of July

 

The legislation submitted to parliament on 21 July is expected to arrive this week at the relevant parliamentary commission, where first debates will take place before it is forwarded to the General Assembly, and to pass before Parliament goes on holiday at the end of the month.