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LEGISLATION

Omnibus Bill, No. 524 (first introduced on June 26, 2013), Amending Provisions in Various Laws and Decrees including Law No. 5651 “Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications”, Law No. 5809 “Electronic Communications Law” and others.[(1) 19 articles of the Omnibus Bill amend Law No. 5651. These amendments place the Internet service and access providers under the obligation of (i) establishing, within 3 months from the enactment of the omnibus bill, a “Union” with headquarters in Ankara that will be under the control of the Presidency of Telecommunications and Communication (TIB), whose members will be the sole entities entiled to obtain an "activity cerificate" and, therefore, provide Internet access and services in Turkey; (ii) writing the by-law of the Union that must be approved by TIB: (iii) paying administrative penalties if the establishment of the Union will not happen within the prescribed deadline, (iv) keeping the access logs for two years and provide them to TIB whenever required, (v) immediately implementing the blocking orders given by TIB even without judicial decision, (vi) paying the establishment expenses, membership fees, costs required to implement blocking orders, and costs for other requirements. (2) Other Articles are intended to amend Law No. 5651 by (i) adding a new category of crimes labelled as “violation of private life” or privacy, (ii) empowering TIB to block a website or web page within 4 hours without any judicial decision, if any natural or legal person files a petition with TIB claiming that a content in a specific website violates their private life, (iii) adding “mass use providers,' including Internet Cafes and any place that supply free WiFi, such universities, hospitals, pastry shops, etc., into the legal category of access and hosting providers thus compelling them to get an “activity certificate”, (iii) enlarging the number of personnel in TIB, and in case of claims of malpractice exempting the President of TIB and President of the Communication Presidency (BTK) from investigation unless such investigation is officially approved by the Prime Minister for BTK's President and the relevant cabinet of Ministers for TIB's President][For an initial legal assessment of these amendments, see Organization for Security and Co-operation in Europe (OSCE), The Representative on Freedom of the Media, Assesment of Draft Amendments to Law No. 5651 (OCSE, January 31, 2014).] [see also Stanford CIS Blog here and here]Law No. 5809, November 5, 2008, Electronic Communications Law (English Version) [(1) An amendment to article 8 of Law No. 5651 (see below) was made through the Electronic Communication Law as follows: “ADDITIONAL ARTICLE 1- (7) The following paragraph “The Presidency [of Telecommunications and Communication] may object to the judicial decisions which are sent thereto for the execution of procedures, as per provisions of Code of Criminal Procedure no. 5271 dated 4/12/2004” has been annexed to Article 8 of Law no. 5651 as paragraph thirteen and to the mentioned Law. (2) Article 12 (5) of the Electronic Communication Law regulates rights and obligations of the operators by stating "[t]he operators are obliged to build the technical infrastructure to provide electronic communications services by meeting the relevant obligations related to national security and the regulations of Laws No. 5397, No. 5651 and other relevant Laws. Operators, which have already been providing electronic communications services, are obliged to build the technical infrastructure with the same conditions within a period of time prescribed by the Authority, undertaking all necessary expenses."]

By-Law No. RG-26942, July 20, 2008, By-Law On Security of Electronic Communications (English Version) [Note: This regulation was somehow published before the enactment of the Electronic Communications Law (sic!)]
By-Law No. RG-27655, July 28, 2010, By-Law on Consumer Rights in the Electronic Communications Sector (English Version)
By-Law No. RG-27697, September 12, 2010, By-Law on Quality of Service in the Electronic Communications Sector (English Version)
Communique No. RG-28236, March 17, 2012, Communique on the Implementation of Annex-4 of the By-Law on Quality of Service in the Electronic Communication Sector (English Version)
By-Law, No. RG-27752, November 11, 2010, By-Law on Internet Domain Names (English Version) [By-law that was prepared on the basis of the Article 5, 34 and 35 of the Electronic Communications Law No. 5809. Articles 16 to 20 regulates the responsibilities of the Registars.]
Communique No. RG-28267, April 17, 2012, “Communique on Acquiring Quality of Service Criteria of GSM Mobile Telephony Services (English Version)
Regulation No. RG-28363, July 24, 2012, Regulation Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (English Version) [The purpose of this Regulation, which was issued on the basis of Articles 4, 6, 12 and 51 of Electronic Communications Law Nr. 5809, is to set out the procedures and principles to be followed by operators performing activity in the electronic communications sector for the processing and retention of personal data and the protection of privacy in the electronic communications sector. Retention of data related to the content of communication is not included in the scope of this Regulation.] Law No. 5651, May 23, 2007, Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publications [(1) The Law No. 5651 aims to combat certain online crimes and regulates procedures regarding such crimes committed on the Internet through content, hosting, and access providers. It also defines the administrative regulations and powers of the Presidency of Telecommunications and Communication (TIB), which has been empowerd to issue blocking orders. (2) The Law regulates the liability of Internet intermediaries, including Content, Access, Hosting service providers and “Mass use” providers, i.e. “Internet cafes,” in Articles 4,5,6 and 7 for the first time in Turkey. On 24 October, 2007 the government published the Regulations governing the access and hosting providers which includes the principles and procedures for assigning activity certificates to those providers. An amended version of these Regulations was published on March 1, 2008. Regulations governing the mass use providers, the so called Internet cafes, was published on November 1, 2007. On 30 November, 2007, the government published the Regulations Governing the Publications on the Internet, which included detailed principles and procedural matters regarding to the application of Law No. 5651. In February 2011, BTK released a decision titled the “Safer Internet”, requiring service providers to offer to their customers the option to use one of four packages: Family, Children, Standard and Domestic package. Safer Internet Service can be activated, de-activated or profiles can be changed by applying to any of the online operating centers, Short Message Service (SMS), call center or Internet service providers. (3) Although the Law was enacted to protect children from pornographic content in the Internet, as a consequence of the website blocking powers given to TIB Presidency ex officio by Article 8, the number of blocked websites in Turkey hit a figure around 40.000 in 2014. (4) In February 2014, the Law has been amended with more strict rules by the Government hrough two omnibus bills (see above).] [A critical assessment of the Law No. 5651 could be found here.]
Regulation No. RG-26680, October 24, 2007, Regulation on the Procedures and Principles for Granting Operating Certificate to Access Providers and Hosting Providers by the Telecommunication Authority (English Version)
Regulation No. RG-26687, November 1, 2007, Regulation on Internet Public Use Providers (English Version)
Regulation No. RG-26716, November 30, 2007, Regulation on the Principles and Procedures of Regulating the Publications on the Internet (English Version) Law No. 5237, October 12, 2004, Turkish Criminal Code (English Version) [Chapter 10 regulates the crimes in the field of Informatics. The crimes in Articles 84 (guidance to suicide), 103/1 (child abuse), 190 (facilitation of drug or cordial use), 194 (providing substances harmful to health), 226 (obscenity), 227 (prostitution), and 228 (providing location and facility for gambling) are also among the “Catalogue Crimes” included in the Law No. 5651.] Law No. 5846, December 5, 1951, Turkish Code of Intellectual and Artistic Works, as Amended by Law No. 5101/25 of March 3, 2004 (English Version) [Access blocking is a legal remedy for intellectual property infringements provided under supplemental Article 4 (see Annex 4, Amendment: 3.3.2004-5101/25 within the English text linked above) of the Law No. 5846 on Intellectual & Artistic Works. This provision was introduced in March 2004 and provides a two-stage approach. Initially the law requires the hosting, content or access providers to take down the infringing content from their servers upon “notice” given to them by the right holders. The providers need to take action within 72 hrs. If the allegedly infringing content is not taken down or there is no response from the providers, the right holders can ask the Public Prosecutor to provide for a blocking order, and the blocking order is executed within 72 hours.] Law No. 5070, January 15, 2004, Electronic Signature Law (English Version) [Chapter 2 provides the responsibilities, Chapter 3 sets the penalties and inspection provisions of the Electronic Certificate Service Providers.]
By-Law No. RG- 25692, January 6, 2005, By-law on the Procedures and Principles Pertaining to the Implementation of Electronic Signature Law (English Version) Law No. 4721, December 7, 2002, Turkish Civil Code (English Version) [Internet intermediaries could be faced with blocking orders as precautionary injunctions, which are issued by civil courts with regard to the violation of personal rights and defamation claims (Article 24, 25).]

BILLS AND PENDING PROPOSALS[There are currently no known new legislative proposals on the issue of intermediary liability.]

DECISIONS

10, March 11, 2014[copyright, freedom of expression, hosting provider, blocking order] [(1) Last.fm was blocked by Turkish courts at the request of a local group representing rights holders. It was challenged by the applicant simply as a user of the site, without involvement by last.fm or local ISPs. He was denied standing by Turkish courts. (2) The Second Section ECHR found that the applicant could not claim to be a victim of an Article 10 violation. Two main arguments were put forward to sustain the inadmissibility decision: (a) the content was available to the applicant through other means and was not ‘of special interest’ to the applicant (cf. Khurshid Mustafa case where Iraqi family was prevented by landlord from installing a satellite dish to receive Arabic channels not available otherwise) (para. 25); (b) the case did not raise an important question of general interest – i.e. it was not political but commercial speech in whose regulation states enjoy a greater margin of appreciation (para. 28).]

Lower Courts1st Criminal Court of Peace of Istanbul, Mehmet Selim Kiraz Case, No. 2015/1644, April 6, 2015[dangerous speech, hosting provider, YouTube, Google, Twitter, blocking order] [(1) The 1st Criminal Court of Peace in Istanbul issued a content removal and blocking order against Twitter, Facebook and YouTube according to a request of the Chief Public Prosecutor of the Terror and Organized Crime Investigation Bureau. The Prosecutor Office demanded that the images of the public prosecutor Mehmet Selim Kiraz held hostage at gunpoint will not be used anywhere on electronic platforms. Mr. Mehmet Selim Kiraz later died of the injuries he suffered during an attempt of the Turkish special forces to rescue him from the kidnappers. Possibly, 166 website were affected by the court order, including international newspaper websites such as The Independent, The Mirror, and Tgcom24 and major Turkish news channels and newspapers. (2) The decision demanded the removal of the content and ordered the website blocking if the online platforms did not comply with the request. After the initial refusal to remove the content, the leading Turkish Internet Service providers implemented the ban on Twitter and YouTube. Facebook complied immediately with the request of removal and was not reached by the implementation of the blocking order. Facebook will appeal the decision, despite momentarily complying with the court order. (3) Later, the blocking order on YouTube and Twitter was lifted after the companies complied with the court's request and removed from their platforms the links listed in the court order. ] [See also CIS blog.] 4th Administrative Court of Ankara, Google Inc. - YouTube v Presidency of Telecommunications and Communication (TIB), No. 2014/xxx, May 6, 2014[defamation, privacy, hosting provider, YouTube, Google, TIB, blocking order] [The Court in Ankara ordered TIB to stay the execution of a blocking order banning access to YouTube in Turkey. Later, upon claim of the Prosecution Office of the same court, YouTube was newly banned.] Criminal Court of First Instance of Ankara, Gölbaşı, Google Inc, YouTube, No. 2014/91 D, April 9, 2014[YouTube, Google, TIB, blocking order][The Court finally ruled to unblock access to the popular video-sharing website YouTube, after initially ordering a temporary measure to reinstate the ban as per the prosecution’s request. (1) Access to YouTube was initially blocked on March 27, 2014 by an order of the Presidency of Telecommunications and Communication (TİB), a few hours after recordings of a key security meeting on Syria leaked online. TIB's ban was unilaterally ordered by TIB without being supported by a judicial decision. (2) Initially, a local court in the Ankara’s Gölbaşı district justified the ban on the grounds of a law incriminating insults to Mustafa Kemal Atatürk, the founder of the Turkish Republic. (3) On April 4, the Gölbaşı Court of Peace ordered that access to the website be unblocked, following an appeal from the Union of the Turkish Bar Associations. The court went on to say that the ban was too broad and in violation of freedom of speech. The Court recommended simply blocking 15 videos as oppose to the entire site. 4) The Gölbaşı Prosecutor’s Office objected to the ruling, arguing that the ban should remain in place because the 15 videos remain on the website and URL-specific blocking is not technically possible. (5) In response to the Prosecutor's objection, the Gölbaşı Criminal Court of First Instance, which is a higher court, reversed the earlier decision of April 5 by ruling that the ban will continue until the “criminal content” is removed by YouTube. (6) Finally, in response to an appeal filed by YouTube, the court revoked the preventive measure temporarily imposed and ruled previous verdicts that justified the ban on YouTube to “be declared null and void." (7) According to this decision, TİB should unblock YouTube after it is officially notified of the ruling, even if YouTube does not remove the aforementioned videos. In fact, TİB decided not to enforce the court’s ruling to unblock Twitter and opted to wait for a Constitutional Court ruling to revoke the ban (see above).] 18th Criminal Court of Peace of Instanbul Anadolu, Objecting Party: Twitter Inc., No. 2014/98, March 27, 2014 [English Version][Twitter, TIB, blocking order, freedom of expression] [Following a decision of the 5th Criminal Court of Peace of Istanbul Anadolu, TIB banned two Twitter accounts, discussing the government related corruption news that appeared in the mainstream and social media in Turkey in March 2014. The claimants, a Minister and one of his sons, requested the Court to ban access to the posts published through the Twitter account "Hirsiza oy yok", "@oyyokhirsiza" ("@No vote for thief), which allegedly published content that constituted an explicit violation of the claimants' personal rights. Twitter objected to this decision, since the content published fall under the scope of media freedom of speech.The 18th Criminal Court of Peace accepted Twitter's arguments and cancelled the previous decision, since it was in contrast with the Turkish Constitution. The 18th Criminal Court also noted that the claim alleging violation of personal rights could not be received, because "the claimants are a former Minister [ . . . ] and his son. They are political figures, whose duties require public transparency and to be subject to public control." ] 15th Administrative Court of Ankara, The Union of Turkish Bar Associations (TBB) v Presidency of Telecommunications and Communication (TIB), Information and Telecommunication Authority (BTK), No. 2014/511, March 25, 2014[Twitter, TIB, BTK, blocking order] [The Court in Ankara ordered TIB to stay the execution of a blocking order banning access to Twitter in Turkey after receiving an appeal filled by the Turkish Bar Association, Turkish Journalists Association and the Deputy President of the Nationalist Movement Party, Oktay Vural, directly against the decision of TIB. Shortly thereafter, the ban on Twitter was lifted also in response to a decision of the Turkish Constitutional Court (see above).] Criminal Court of Peace, Recep Konuk Corruption Case, 2010[defamation, liability, search engines] [A 2010 decision of the Turkish criminal court of peace provides an important precedent in regards to how Turkish courts should interpret and apply the provisions of Law No. 5651 to search term suggestions. The court held that Google cannot be held responsible for search-term suggestions appearing on its search engine when the search term “recep konuk corruption” and “recep konuk’s corruptions” appear. The court reasoned that what is being requested for removal is the search term suggestions and not content as understood by Law No. 5651. The court premised its reasoning as follows: “The removal of content which is reached through these search results can be requested from the content provider in accordance with the Law No. 5651 { . . . ]. [T]he obligations of the access providers are within the context of Article 6 and the request should be made to the access provider.” The court grants that search term suggestions are not to be considered content as understood under Law No. 5651.] First Criminal Court of Peace of Diyarbakır, Digiturk, October 20, 2008[copyright, piracy, blocking] [The Court lifted its blocking order (ban to the two domains and their IP addresses) with regards to Blogger.com and Blogspot. Digiturk, a subscription based digital TV platform in Turkey which owns the right to transmit the live coverage of the Turkish football league games. Access blocking is allowed under supplemental article 4 of the Law No. 5846 on Intellectual & Artistic Works.] 2nd Criminal Court of Peace of Sivas, Ataturk, No. 2008/11, January 16, 2008[defamation, blocking, YouTube] [Ordering an IP address based access ban to YouTube.com as the website contained two further videos containing defamatory statements about Ataturk contrary to article 8(1)(b) of the Law No. 5651 and Law on crimes committed against Ataturk (Law No. 5816, dated 25/7/1951), and content contrary to article 301 (Insulting Turkishness, the Republic, the organs and institutions of the State) of the Turkish Criminal Code.] 2nd Civil Court of First Instance of Kadıköy, Dean of University of Marmara, No. 2008/1, January 8, 2008 [defamation, blocking, internet forum] [Issuing an URL access ban with regards to a single video containing defamatory statements about the dean of University of Marmara in Istanbul in breach of articles 24 and 25 of the Turkish Civil Code in January 2008.] 11th Criminal Court of Peace of Ankara, Ataturk, No. 2007/1431, December 17, 2007[defamation, blocking, YouTube] [This is the first decision issuing an order to block access to certain YouTube pages (URL access ban). The blocking order was issued because YouTube contained 8 videos involving defamatory statements about Ataturk contrary to article 8(1)(b) of Law No. 5651 and Law on crimes committed against Ataturk (Law No. 5816 of 1951).] 5th Criminal Court of Peace of Ankara, Ataturk prosecution, October 2007[defamation, blocking, YouTube] [Issuing a blocking order that banned access to www.youtube.com with regards to 66 video clips involving defamatory statements about Ataturk, the Turkish Army, the Prime Minister and the President of Turkey.] 2nd Civil Court of First Instance of Istanbul, Adnan Oktar vs. Wordpress.com and Google groups, August 2007[defamation, blocking, internet forums] [Defamation claims from Adnan Oktar resulted in the blocking of the websites Wordpress.com and Google groups in Turkey (article 9 of Law No. 5651).] 11th Assize Court of Ankara, No. 2007/2882, June 1, 2007 [freedom of expression, confidentiality, blocking, YouTube] [Issuing blocking order in connection with two YouTube video clips involving a suspect who was under custody for interrogation. It was alleged that the clips had been broadcasted by other media institutions and their availability on YouTube were prejudicial to the Public Prosecutor’s case and were in breach of article 157 (Confidentiality of interrogation) of the Turkish Criminal Procedure Law, and Regulation on Arrest, Custody and Questioning. The Court, however, did not discuss whether there was legal basis to restrict freedom of expression.] 11th Assize Court of Istanbul, PKK, No. 2007/842, April 3, 2007[terrorism, blocking, YouTube] [Issuing a blocking order releted to the display of acts of violence and terrorism. The blocking order involved 67 videos depicting terrorist propaganda and attacks by PKK, and the order triggered URL based access ban to YouTube pages as such actions are criminalized under articles 6 and 7 of the Turkish Anti-Terror Law No. 3713.1] 1st Criminal Court of Peace of Istanbul, Ataturk Prosecution, March 2007 [defamation, blocking, YouTube] [Ordering the blocking of access to the whole of www.youtube.com because of a single video involving defamatory statements about Ataturk and scenes disparaging the Turkish Flag. Those conducts are considered illegal under Law No. 5816 of 1951, and against article 300 of the Turkish Criminal Code. YouTube removed the illegal video clip from its servers, and the initial access ban which was ordered on March 6, 2007 was lifted 3 days later.] District Court of Afyonkarahisar, Civil, Governor Muammer Dilek v Muhammet Tascilar (ISP) Urfa, 20003/119, March 12, 2004 [hosting providers liability, ISP liability, Turkey, content providers liability] [Muammer Dilek, the ex governor of Sanliurfa, claimed that there were defamatory comments about him on the Sanliurfa.Com website. The Court ordered Muhammet Tascilar, the owner of the company hosting the website to pay 5 billion TL (€2500) to the governor of Sanliurfa, for the alleged defamatory comments made on the sanliurfa.com website by an unidentified blogger. (Related domestic laws: Press Code and Turkish Criminal Code).] Istanbul Assize Court, Coskun Ak Prosecution, May 1999[insult, liability, internet forum ] [Coskun Ak, a former moderator of various forums operated by Superonline, one of the largest ISPs in Turkey was sentenced to 40 months in prison due to a particular message about human rights abuses in Turkey sent to a Superonline forum by an anonymous poster. The message that triggered a prosecution under article 159 of the Turkish Criminal Code was sent anonymously in May 1999. The court decided to sentence Ak for insulting and weakening the Republic of Turkey, the Military Forces, the Security Forces, and the Ministry of Justice, to one year in prison for each insult separately, totaling four years. Later, his sentence was reduced to 10 months for each insult, totaling 40 months. And on 12 March 2002 Istanbul Criminal Court No. 4 passed a second verdict against Coskun Ak. The sentence of 40 months' imprisonment was commuted to a fine of TL 6 million (app. $4). On 24 April, 2003, this second sentence was quashed by the Court of Appeal.]

OTHER RESOURCES

Akdeniz Y. and K. Altıparmak, Internet: Restricted Access, A Critical Assessment of Internet Content Regulation and Censorship in Turkey”, Cyber-Rights.OrgAkgul M. and M. Kirlidog, Internet Censorship in Turkey, 4(2) Internet Policy Review (June 3, 2015), http://policyreview.info/articles/analysis/internet-censorship-turkey Bianet.Org: Internet Related Court Decisions & Bans, http://www.bianet.org/konu/internet-censorshipEFF.Org: Turkey, https://www.eff.org/search/site/TurkeyEngelli Web.Com (Restricted Web Sites), http://engelliweb.comEuropean Court of Human Rights: Turkish Page, /content/files/Documents/cp_turkey_eng.pdfGonenc Gurkaynak, İlay Yılmaz, Derya Durlu, Understanding Search Engines: A Legal Perspective on Liability in the Internet Law Vista (2013)Human Rights Watch: Turkish Page, http://www.hrw.org/world-report/2014/country-chapters/turkeyInternet Law Turkey.Com: Articles, http://www.internetlawturkey.com/articles-in-englishPresidency of Telecommunications and Communication (TIB), http://www.tib.gov.tr/en/ Information and Telecommunication Authority (ITCA) (BTK in Turkish), http://eng.btk.gov.tr Safe Internet, http://www.guvenliweb.org.tr/index_eng.php?Pg=1Turkish Government CyberSecurity Website, http://www.cybersecurity.gov.tr/regulations.html

CONTRIBUTORS

Avniye Tansug, LL.MEmail address: tansug.avniye at istanbulbarosu.org.tr or avniye at tansug.com[personal page][Law of the Information Age Blog] Faig AlizadaEmail: faig.alizada at gmail.com

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