The Online Regulation Series | Turkey

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Online content regulation in Turkey is characterised by extensive removal of material that has resulted in a large number of Turkish and international websites being blocked in recent years. Further, the Turkish government recently introduced a Social Media Bill, implementing a wide range of new regulations and steep penalties for social media companies, which critics say poses further threats to online freedom of expression in the country.

Regulatory framework:

• Bill Amending the Supreme Board of Radio and Television and Press Code, Law No. 4676, May 2002, subjected the online space to restrictive press legislation in Turkey. However, apart from a single reported case, this law was never used by either  prosecutors or  courts.
• The Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication, 2007, widely known as the “Internet Law 5651” or “Law No. 5651.” This regulates prohibited content, such as child abuse images and obscenity, on the Internet and enables the blocking of websites.
• Many provisions of the Criminal Code and other laws, such as Turkey’s Anti-Terrorism Law and Defamation Law are applied to online and offline activity. For instance, the Anti-Terrorism Law subjects those who “make online propaganda of a terrorist organisation” — “by legitimising, glorifying, or inciting violent methods or threats” — to imprisonment.
• The Social Media Bill, Law No. 7253, October 2020, compels social media companies with over a million daily users in Turkey to adhere to new regulations, such as storing user data in Turkey and a smaller timeframe for responding to complaints about posts that violate personal and privacy rights, as well as fines for failure to comply.

Relevant national bodies:

• The Ministry of Transport, Maritime Affairs and Communications (MIT) is responsible for policy making for telecommunications in Turkey. Through its surveillance powers, the MIT is able to intercept and store private data on “external intelligence, national defense, terrorism, international crimes, and cybersecurity passing through telecommunications channels”, without a requirement to obtain a court order.
• The Telecommunications Communication Presidency (TIB) was empowered in 2007 via the Internet Law 5651 to issue blocking orders for websites.
  • The TIB was shut down after the 2016 coup attempt in Turkey, and all of its responsibilities were transferred to the Information and Communication Technologies Authority (BTK).
• The BTK is an independent institution and has the power to enact by-laws, communications and other secondary regulations pertaining to the authorisations granted by the Electronic Communications Law.
• The Radio and Television Supreme Council (RTÜK), enabled by a March 2018 Bill, is authorised to regulate online content, including commercial streaming and foreign-based online media platforms.

Key takeaways for tech companies:

• The Internet Law 5651, or Law No. 5651, regulates the Internet and online service providers. Under this law:
  • ISPs are required to consolidate into a single “Association of Access Providers”. Access providers part of the Association obtain an “activity certificate” to legally operate in Turkey, while those who are not members are not be able to provide services within the country.
  • Blocking orders can be issued by courts, public prosecutors, or the BTK.
    • Websites hosted in Turkey found to host proscribed content can be taken down, while websites based abroad can be blocked and filtered through ISPs.
    • Blocking orders can be administered if any individual or legal entity alleges a privacy violation, or if the content is considered “discriminatory or insulting to certain members of society”. ISPs also have to block access to specific URLs within 4 hours of receiving an order.
    • Foreign-hosted websites are subject to blocking if they are suspected to contain eight categories of prohibited content, including: child abuse images, content that facilitates drug use, provision of substances dangerous to health, obscenity, prostitution sites, gambling sites, encouragement of suicide, and crimes committed against Mustafa Kemal Ataturk.
  • There are steep fines for failing to comply with the mentioned regulations:
    • If ISPs fail to comply with blocking orders within 4 hours, they face a fine up to 300,000 Turkish liras ($52,150), and if they fail to take action to block all alternative means of accessing the targeted site, such as proxy sites, it could result in a fine of up to 50,000 Turkish liras ($8,690).
• Under the newSocial Media Bill, social media companies with over a million daily users in Turkey are required to:
  • Establish a formal presence in the country;
  • Respond to complaints about posts that “violate personal and privacy rights” within 48 hours, or face fines up to $700,000.
  • International companies are required to store user data in Turkey.
  • It would also allow courts to order Turkish news websites to remove content within 24 hours.
    • If social media companies do not comply with the new criteria within six months of the legislation having gone into effect, Turkish authorities will be able to ban advertising on the platforms, assign high fines, and adjust the sites’ bandwidth by up to 90%.
• The RTÜK can regulate online content, including commercial streaming as well as foreign-based online media platforms. The RTÜK can also issue licenses to online content providers for a fee of 100,00 Turkish liras ($17,380) and is able to fine providers or revoke their licenses.
• Under Law No. 6532 on Amending the Law on State Intelligence Services and the National Intelligence Organisation (2014), the powers of the MIT to conduct surveillance were expanded and intelligence agents were granted unrestricted access to communications data without a court order.
  • Law No. 6532 mandates public and private bodies, such as banks, archives, professional organisations, and private companies, to provide the MIT with any requested data, documents, or information pertaining to certain crimes related to national security, state secrets, and espionage. Failure to comply can be punished with imprisonment.
  • Hosting and access providers must preserve all traffic information for one year and, in addition, access providers are required to provide assistance to the TIB (since 2016, the BTK) in monitoring internet traffic.

Anti-Terrorism Law and defamation offenses

According to the Freedom House 2020 assessment on Turkey, there are no laws that specifically criminalise online activities. However, many provisions of the criminal code and other laws, such as the Anti-Terrorism Law, are applied to online as well as offline activity. Article 7 of Turkey’s Anti-Terrorism Law states, “those who make propaganda of a terrorist organisation by legitimising, glorifying, or inciting violent methods or threats” can be imprisoned for one to five years. This law has been criticised for its broad definition of terrorism, which has allegedly been exploited by courts to prosecute journalists and academics who criticise the government with no clear links to terrorist activities.

Online content regulation

In May 2002, the Turkish Parliament passed the Bill Amending the Supreme Board of Radio and Television and Press Code (Law No. 4676), which contained provisions that would subject the internet to restrictive press legislation in Turkey.

In May 2007, the government enacted the “Internet Law 5651” to regulate Internet and online service providers. The law regulates the liability of Internet intermediaries, including content, access, hosting service providers and “mass use” providers, such as “internet cafes”, in Articles 4, 5 , 6, and 7. It therefore defines the responsibilities of content providers, hosting companies, public access providers, and ISPs. Although the law was introduced to hinder the spread of harmful content online, according to Human Rights Watch (HRW) it has been used to block LGBT community forums, independent media websites, and news sites with a pro-Kurdish political line. In addition, global websites hosting large volumes of user-generated content, including YouTube, Twitter, Blogspot, Wordpress, Vimeo, and Google Groups, have been blocked entirely on occasion, even if “only a fraction of the content was deemed subject to blocking”. For example, following a corruption scandal that erupted when multiple conversations from top officials were leaked, authorities blocked access to Twitter and YouTube.

In February 2014, the law was amended, broadening powers to block content. This included requiring ISPs to consolidate into a single association as well as to block access to specific URLS within 4 hours of receiving an order. The amendments also expanded the TIB’s powers to issue administrative blocking orders if any individual or legal entity alleges a privacy violation or if the content is considered “discriminatory or insulting to certain members of society”. Non-compliance to these regulations result in high fines. These regulations were met with criticism, such as from HRW, who stressed that “although such blocking orders must be reviewed by a court within 48 hours, the grounds are so broadly and vaguely defined that they allow discretion for abusive application and interpretation”. A typical concern is that high fines coupled with broadly and vaguely defined grounds might lead to companies erring on the side of overly-cautious content removal or blocking, which could lead to heightened censorship and infringe upon freedom of expression online.

According to HRW, as a consequence of the No. 5651 law, Turkish authorities have blocked tens of thousands of Turkish and international websites over the last few years.

New Social Media Bill

On October 1, 2020, Turkey’s newest legislation for social media, “Law regarding the regulation of publications made in the Internet environment and the fight against crimes committed through these publications” came into effect, amending Law No. 5651. The law introduces strict regulations for social media companies, coupled with steep fines. This has been criticised by many human rights advocates for having potential negative effects on freedom of expression. According to HRW, this new social media law “paves the way for greater online censorship”. HRW further argues that “Turkey’s courts and regulatory bodies lack the independence necessary to prevent abuse of the law”, and that “in practice the law therefore could serve as a new tool to silence critics online”. The Global Network Initiative (GNI) has expressed concern as well, stating that this law “contains several problematic provisions that are likely to significantly complicate the operation of social media services in Turkey and challenge the ability of Turkish citizens to freely exercise their rights to freedom of expression and privacy”.

Regulation in practice: extensive online blocking

According to Freedom House’s 2020 Freedom on the Net assessment, the Turkish constitution and laws “fail to protect freedom of expression and press freedom online”, as online journalists and users frequently suffer civil and criminal penalties for legitimate expression. The state of emergency enacted in the aftermath of the 2016 coup attempt, which lasted until July 2018, allowed President Erdoğan to publish decrees without judicial oversight. This included decrees that were used to block websites, shut down communication networks, and close civil society organisations as well as news outlets. In particular, Decree No. 671 (2016) amended Turkey’s Law on Digital Communications to empower the government to take “any necessary measure” on the grounds of “national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms” established under Article 22 of the Turkish constitution. It also requires any company that provides digital communications to enforce government orders within two hours of receiving them. Even though the state of emergency has not been in effect since 2018, the decree remains.

Resources:

Akdeniz Yaman, Report of the OSCE Representative on Freedom of the Media on Turkey and Internet Censorship, OSCE

Beceni Yasin, Sevim Tuğrul, Aslan Erdem, Zengin Selen and Can Akdere Kaan (2017) Communications: regulation and outsourcing in Turkey: overview, Practical Law

Freedom House (2020), Freedom on the Net 2020: Turkey

Global Network Initiative (2020), Content Regulation And Human Rights

Global Network Initiative (2020), GNI Statement on Proposed Social Media Bill in Turkey

Human Rights Watch (2014), Turkey: Internet Freedom, Rights in Sharp Decline

Human Rights Watch (2020), Turkey: Press Freedom Under Attack

McKernan Bethan (2020), ‘It’s a war on words’: Turks fear new law to muzzle social media giants, The Guardian.

The Center for Internet and Society: Stanford Law School, Law No. 5651, May 23, 2007, Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications Zeldin Wendy (2014), Turkey: Law on Internet Publications Amended, Library of Congress