Intermediary Liability Updates from Turkey: Forcing Online Intermediaries to Create a Website Blocking-Friendly Infrastructure

Turkish governmental control of web traffic is on the rise. Recently, the Information Technology and Communications Authority (the "ITC Authority") updated the Authorization Regulation in the Electronic Communications Sector (“Authorization Regulation”) and the Administrative Sanctions Regulation. This is an administrative implementation of previously enacted legislation, which however introduces new obligations on telecommunications operators. In particular, the amended regulation makes website blocking in Turkey easier. Meanwhile, a new omnibus bill was introduced before the Turkish Parliament to give the prime minister or any ministers the right to block websites without a court order for protection of public order.

According to Article 12(5) of the Electronic Communication Act and Article 6A of Law No. 5651 (the “Internet Law”), authorized operators, without regard to their scope of services, are requested to upgrade their infrastructure, according to ITC Authority standards and principles. The infrastructural upgrade must facilitate access blocking requests by the Presidency of Telecommunications and Communication - Telekomünikasyon İletişim Başkanlığı (“TIB”).

The amended Authorization Regulation and Administrative Sanction Regulation have now attached harsh consequences for operators that fail to fulfill the infrastructural obligations and TIB's blocking requests.

  1. Authorizations for operators who do not fulfill the infrastructural requirements will be revoked.
  2. Any operators who do not upgrade their infrastructure appropriately (a) will be prohibited from offering their services to other operators and end users. (b) Moreover, operators will not be allowed to offer electronic communications services to other operators who have not updated their infrastructure.
  3. Any authorized operator failing to fulfill TIB requests, orders, and warnings will be subject to an administrative fine of up to 3% of its annual turnover, and/or revocation of its authorization.
  4. Additionally, if the operator is sanctioned for these violations, other legal entities related to this operator, executive board members or other directors could be deemed ineligible to offer electronic communications services.

The amended Authorization Regulation will become effective on February 28, 2015, to give operators time to update their infrastructure.

Additional information on the new ITC Authority's Regulations can be found here

Finally, according to a new omnibus bill recently submitted to the Turkish Parliament, the prime minister and any ministries may soon be given the power to request TIB to block websites within four hours. Upon governmental request, TIB will be able to take urgent measures to block access to website or remove online content for “protecting the right to life, protecting people’s life and property, national security, public order, preventing crime, or protecting general health.” Websites must be blocked by service providers within four hours from TIB's communication of the Government's request and will remain blocked until the content is removed. On October 2, 2014, the Turkish Constitutional Court already ruled unconstitutional a similar regulation empowering TIB to block website within four hours without court order. However, the willingness of the Turkish Government to censor the Internet and control tightly online intermediaries' activities appear to be relentless. 

 

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