Internet regulation in Turkey

Regulatory authorities

Turkey considers itself a democratic country with a Prime Minister as the head of the government. Its political system is based on the separation of powers. Specifically, the executive branch consists of the Prime Minister and the Council of Ministers.

Aside from the traditional structure, certain public institutions are formed to regulate and execute specific duties. These institutions are classified as “regulatory authorities (RA)” and some of them have a sector-specific focus; "regulatory and supervisory authorities are established in order to regulate and monitor different types of markets in accordance with the requirements of a functioning market economy."

Some relevant regulatory authorities in Turkey are "the Competition Authority, the Energy Market Regulation Authority, the Banking Regulation and Supervision Authority, the Information and Communication Technologies Authority, and the Tobacco, Tobacco Products and Alcoholic Beverages Market Regulation Board."

History

The Telecommunications Authority was established by means of the Law 4502, dated 29 January 2000. This Law addressed the responsibilities of the Ministry of Transport, among others, and "separated policy-making and regulatory functions of the government by establishing an independent telecommunications regulatory body, the Telecommunications Authority, as the first sector specific regulator in Turkey. As a result, regulatory functions of the Ministry of Transport were transferred to the Authority in principle, and the General Directorate of Radiocommunication, a government body in charge of radio frequency management under the Wireless Law (Law 2813, 7 April 1983), was abolished and all of its functions were transferred to the Telecommunications Authority."

On 5 November 2008 the Turkish legislature enacted the Law N. 5809, commonly known as the Electronic Communications Law (ECL). The purpose of this law has been briefly described as "to remove the legislative untidiness, create competition in the sector, lessen the uncertainties for operators and allocate resources to R&D".

The Electronic Communications Law attributed to the Ministry of Transportation, Maritime Affairs and Communications the policy making authority in the field of electronic communications (article 5). The regulation function was given to the Telecommunications Authority (article 6).

Following article 65(3) of the Law N. 5809, the name of the Authority was changed from "Telecommunications Authority" to "Information and Communication Technologies Authority (ICTA)".

Duties of the ICTA

The duties of ICTA as described in the ECL (article 6), can be summarized as given below: (taken from ICTA's official website)'

Organization of the ICTA

Based on ECL, ICTA's structure consists of 4 Vice Presidents, 17 departments, 5 offices, a Legal Consulting Office, and the Telecommunication Communications Presidency with 5 departments.

Background

ICTA is attributed responsibilities about information technologies by the ECL. Among them, regulation of a dispute resolution system for domain names, e-signature, and a registered e-mail system.

In addition, the Presidency of Telecommunication and Communication (PTC) is another institution affiliated to ICTA which has a particular focus on telecommunications and Internet regulation. PTC was established by the Law No. 5397. PTC is organized directly under ICTA and it consists of a Law Department, a Technical Management Department, an Information Systems Department, an Administration Department and an Internet Department.

Law No. 5651, known as the Internet Act (IA), was enacted on 4 May 2007. The purpose of this law has been described by the PTC as follows: "There are 2 reasons for the law to be brought out. The first reason; determining the liability and the responsibility of collective use providers, access providers, location providers and content providers which are the main actors of the Internet. The other reason is to determine the procedures and fundamentals related to the specific crimes committed over the Internet and fighting these through content, location and access providers."

The IA reorganized the duties of the PTC. These included publications that are made on the Internet environment and the law regarding fight against committed crimes by these publications. Accordingly, to implement these tasks the Internet Department has been established.

Internet law

Internet content regulation is implemented by the PTC (ECL Art. 6/g, 13). Content regulation is governed by the Law No. 5651.

On February 2014, the Turkish Parliament passed "an omnibus bill including new regulations on Internet usage which gives more power to the country’s national telecommunications authority". This bill implies modifications of the Internet Act (IA) and, of some of the provisions about Internet content regulation and the authority of the PTC.

There are secondary regulations such as ordinances enacted based on the IA as well. Secondary regulations elaborate upon the provisions, of the IA, about Internet content regulation. These are namely; ordinance on the procedures about granting business certificate for the host provider and access provider, ordinance on the procedures for regulating the content of online publications.

Responsibilities of the content provider and the host provider

Internet content regulation is governed by IA. According to the Act the main responsibility is placed on the content provider. As a rule content provider is not responsible for the linked content provided by another. However, if this content is obviously supported by the content provider he shall be responsible under general provisions (Act No. 5651 Art. 4).

On the other hand, the host provider is not responsible for supervising the legality of the content. Nevertheless, the host provider is responsible for taking out the content when notified according to the IA. The host provider is also required to save the traffic information for the period which will be determined by the ordinance (between 1–2 years). The host provider shall present the information demanded by PTC and take the precautions instructed by the PTC. According to the new version of the IA, the hosting service provider is sanctioned with monetary fines instead of imprisonment, as it was stated in the previous legislation (Act No. 5651 Art. 5).

Board of access providers

With the modifications to the Internet Act, a board of access providers was established. The board was given legal personality and is headquartered in Ankara. The board consists of the operators (service providers and other operators rendering Internet access services) which are authorized as per the ECL. The Board is designed to be self-sponsored. The Board is required to execute the decisions for prevention of access, excluding decisions that might have to be based on the category of crimes enumerated in Art. 8. These enumerated crimes are; inducement for committing suicide, sexual abuse of children, facilitation of drug abuse, providing detrimental drugs, obscenity, prostitution, providing place and opportunity for gambling, and crimes against Mustafa Kemal Atatürk (defined by the Law No. 5816). Information related to the crimes against Mustafa Kemal Atatürk, may be found in the External Links section of this article.

According to Art 8, in case of sufficient suspicion a decision for prevention to access, may be rendered by the judge, during the investigation phase for these enumerated crimes. If the circumstances require an express decision, the public prosecutor would also be entitled to render a decision to prevent access with a condition to present the decision to the judge in 24 hours for approval. However, the decision would promptly be revoked by the public prosecutor unless it is approved by the judge. If the suspect is found innocent at the conclusion of the judicial hearing, the decision for prevention of access shall be deemed invalid (Act No. 5651 Art. 8/1).

If the Content Provider or the Hosting Provider of the publication is located outside Turkey and involves certain enumerated crimes mentioned above the PTC shall render the decision for prevention on its own initiative. PTC shall also be entitled to render a decision for prevention in case of sexual abuse of the children, obscenity and prostitution disregarding the location of CP or HP (Act No. 5651 Art. 8/2).

Protection for intrusion upon seclusion and infringement of personal rights

Individuals or legal persons claiming infringement of personal rights are entitled to apply to CP or to HP (when access to CP is not possible). In these situations they can legally inform and warn the CP or HP about the infringement. CP or HP must reply to the application within 24 hours. The claimant is also entitled to a direct application to the court without warning the CP or HP. According to the new version of IA, the judge will render its decision only aiming the portion infringing personal rights and not the whole web site. However, if the judge deems necessary for the protection of the personal rights he can render a decision including whole content on the web site. The judge shall render his decision within 24 hours (Act No. 5651 Art. 9).

Presidency of Telecommunication and Communication’s authority and judicial control

In addition to these, the Presidency of Telecommunication and Communication (PTC) will be the competent authority if the content of the publication intrudes upon an individual's private affairs (intrusion upon seclusion). In this circumstance, PTC shall take initiative upon the individual’s request. The request for prevention should include satisfactory information about how the individual's private affairs were intruded, and his credentials (Act No. 5651 Art. 9).

The individual seeking for the prevention of the content is required to submit his official demand to the Court in 24 hours. The Court shall render its decision in 48 hours stating its opinion if the content does in fact constitute intrusion upon private affairs/seclusion. Noncompliance to these time limits shall automatically conclude the invalidation of PTC’s decision for prevention. According to the IA article 9/A/8 if individual's life is in peril, the President himself is entitled to render a decision for prevention. However, in this case an objection shall be submitted to the Court (Law No. 5651 Art. 9/A/5).

Protection of privacy, reputation, and availability of judicial process

As one of the arguments in support of the IA the government addressed the protection of privacy. In a declaration, the Transportation, Maritime and Communication Minister Lutfi Elvan mentioned that “we want to protect individual rights and liberties. We want to protect and guarantee the right to privacy. In that regard, the existing bill did not respond to the needs of the people”. The Minister Elvan has also mentioned that the bill by protecting privacy, protects the violation of personal rights.

In another declaration the Prime Minister himself mentions that the new Internet law does not stipulate any censorship, and it is a measure against blackmailing, immorality, and the threat against people's reputation. In a memorandum the government also mentioned that “In the event of a breach of ‘a person’s privacy,’ such as illegal wiretapping and the sharing of personal data without consent, in order to prevent irreversible damage that could be caused by the “time lag” between the complaint of the individual and the decision of the court, the bill will make it possible to implement a temporary prevention of access. When an individual raises a complaint, the Presidency of Telecommunication and Communications will send the request to the Union of Access Providers, which will block the URL within the next four hours as a preventive measure.“The complainant should also file his request to the penal court of peace within 24 hours and the decision of the court should be given within the next 48 hours. If the decision of the court is not in favor of the complainant, the restriction on access to the URL will be removed by the Union. Unless a decision by the court is delivered to the Union within 48 hours, the restriction will be automatically removed.”

Parallel regulation with European Union countries

As a response to criticism by the European Union in his declaration the Minister indicated “Turkey’s new Internet law is no different than Internet regulations in any other developed countries”. He also denoted the Internet regulation in UK and mentions that “However, comparing the new bill to UK Internet law, the Internet Watch Foundation (IWF) has a blacklist, and works with Internet service providers to block sites without even needing a court decision… IWF can take hostile views; IWF blocked access to the Wikipedia article about popular rock band 'Scorpions' that was deemed potentially illegal.” He also mentioned that government was now providing broadband Internet access to public schools.

Facilitation of protective interim measures for personal rights

It is also declared by the government that implementation of the prevention of access decisions are facilitated by the requirement of stipulating a legal responsibility to operators for preserving traffic information up to 2 years. Government also mentions that new codification will be helpful for preventing victimization from online defamatory content in an efficient and swift way. And the final decision is to be rendered by the court. However, the initiative of the PTC is designed as a tool for an interim measure to protect the individual’s personal rights from defamation till the court renders its decision. Since a defamatory content can spread very swiftly because of the nature of the Internet in the time gap till the court renders its decision.

Availability of partial prevention

According to the new version, only the infringing content will be able to be removed instead of the whole content provided on the web site

Inclusion of private sector in regulatory regime

According to the code The Board consists of the operators (service providers and other operators rendering Internet access services) which are authorized according to ECL.

Replacing imprisonment with monetary fines

Unlike the previous version, the new version of the IA includes monetary fines instead of imprisonment.

Freedom of expression

Opponents to the IA have criticized it heavily. They mention that government is willing to place a censorship on freedom of expression on the Internet. They blame the government for using democratic tools for implementing censorship on Internet. They allege that Internet law does not regulate wiretapping or personal data. It regulates the prevention of access to online content under certain circumstances. However, opponents mention their concern about these issues. Opponents also criticized the TCB’s authority for implementing a decision for prevention when the personal rights are involved in the online content. They mention that this regulation places a huge power on TCB. However government explains that TCB’s decision will be lifted automatically if the court does not approve The Act also attracted international attention. US and EU communicated their concerns about IA. President Obama also talked to Prime Minister Recep Tayyip Erdoğan about the IA and its influence

Financial burden on operators

Opponents also mention that the establishment of the Board of access providers will place an economic burden since the Board is stipulated to be self-sponsored. Entrepreneurs are of the opinion that implementing the legal responsibilities arising from IA may cause small-scale companies a serious problem. They also express that after IA these firms may prefer to operate outside Turkey. They indicated their concerns about the anticompetitive environment;

Safe Internet

Other than IA another regulation that attracted public attention was Safe Internet (SI). SI is setting up an optional, free and on-demand service for families to protect their children from detrimental content. SI present options. Users have alternatives such as family and children profiles and they can opt in or opt out of the service at any time with their consent. These profiles are also created by a board of academicians from various backgrounds such as pedagogy, psychology, law, sociology. The main objective of SI is to provide the safe, effective and right use of Internet which is spreading at a fast speed. To this end raising awareness in general of the society, individually of the children, families and educators, together with the most effective and useful methods of safe use of Internet and raise consciousness towards the dangerous aspects that the Internet contains. People in Turkey and around the world are being educated about the general trends of the Internet use and information about similar useful statistics are given

Impact of the 2014 modifications to the 2007 Internet Act

As it was mentioned above, in February 2014, the Turkish government passed an omnibus law that included provisions that modify the Internet Act of 2007. This modifications have had impact, considering that they have been described, as a restriction over free speech. Following, there are some commentaries that expose the reaction to the 2014's Internet Act modifications: