This is an automatically generated PDF version of the online resource turkey.mom-rsf.org/en/ retrieved on 2021/12/02 at 10:57
Reporters Without Borders (RSF) & Bianet - all rights reserved, published under Creative Commons Attribution-NoDerivatives 4.0 International License.
Bianet LOGO
Reporters without borders

Legal Framework

 

AMENDMENTS TO THE LAW NO. 5651

October 17, 2019

The "Law No. 7188 on the Amendment of the Criminal Procedure Law and Certain Laws" within the framework of the Judicial Reform, adopted on October 17, 2019 (Official Gazette 24.10.2019-30928), amended certain articles of the “Law on Regulation of Publications on the Internet and Combating Crimes By Means of Such Publication”

The following has been added to the 7th paragraph of Article 8 of the Law No. 5651 titled "The decision to block access and its implementation": "7) In the event of a decision that there is no need for prosecution following the investigation, the decision to remove the content and/or block access automatically becomes invalid. In this case, the public prosecutor sends a copy of the decision not to prosecute, by stating the Internet address subject to the (invalidated) decision to remove the content and/or block access, to the Authority"

In the event that “it is decided that there is no need for prosecution following the investigation”, concerning the publications on the Internet, the decision to block access automatically becomes invalid. "Public prosecutor" has been added to the seventh paragraph of Article 8 of the Law.

If the decision to block access becomes invalid, the public prosecutor sends a copy of the decision of non-prosecution, by stating the Internet address subject to the invalidated decision to remove the content and/or block access, to the Authority The Information and Communication Technologies Authority (ICTA).

The following was added to the eighth paragraph of the Article 8 to be placed after “by the court: “by stating the Internet address subject to the invalidated decision to remove the content and /or block access”

If the judgment is upon acquittal at the end of the criminal case, the court will send a copy of the acquittal decision to the authority (ICTA). The amended version of the 8th paragraph is as follows: "(8) In the event of an acquittal judgement following the proceedings, the decision to remove the content and/or block access automatically becomes invalid. In this case, the court sends a copy of the acquittal judgement, by stating the Internet address subject to the (invalidated) decision to remove the content and/or block access, to the Authority"

Amendment to be added as the 17th paragraph to the 8th article: “(17) (Supplement: 17/10/2019-7188/36 art.) The decisions to block access within the scope of the second, fourth and fourteenth paragraphs of this article, are rendered to be implemented as a denial of access to the relevant publication, part, section (in the form of URL etc.) where the violation has occurred. However, in cases where it is technically not possible to block access to the content related to the violation or the violation cannot be prevented by blocking the access to the relevant content, a decision may be made to block access for the entire website.”

Therefore, after this amendment, this paragraph is as follows: “(17) The decisions to block access within the scope of the second, fourth and fourteenth paragraphs of this article, are rendered to be implemented as a denial of access to the relevant publication, part, section (in the form of URL etc.) where the violation has occurred. However, in cases where it is technically not possible to block access to the content related to the violation or the violation cannot be prevented by blocking the access to the relevant content, a decision may be made to block access for the entire website.”

To sum up; the article 8 amendment has only one positive aspect in terms of freedom of expression. In parallel to giving the power to make decisions to block content or block access to the prosecutor's office, courts and institutions; the duty of notifying the ICTA about revoking of these decisions is given to the prosecutors and courts if, at the end of investigation or proceedings, the decisions or judgments are upon non-prosecution or acquittal.

One of the duties of the prosecutor’s office is to send a copy of the decision of “non-prosecution”, by stating the Internet address subject to the invalidated decision to remove the content and /or block access, to the Authority, the Information and Communication Technologies Authority. Likewise, the courts have the duty to send a copy of their judgments upon acquittal, by stating the same information, to the ICTA. According to the amendment, the judgments or decisions on non-prosecution will suffice for revoking the decisions about removing content or blocking access. These decisions will automatically become invalid. In such cases, therefore, the relevant judgments and decisions should be directly sent to the ICTA, and no other action or demand is necessary; the duty belongs to the judiciary. Any omission or delay in this regard, will result in a blatant violation of rights and may even constitute a crime.

The 17th paragraph added to the 8th Article is clear and an expression of the “ought”. The decisions to block access are rendered to be implemented as a denial of access to the relevant publication, part, section (in the form of URL etc.) where the violation has occurred. So the entire website may not be blocked because of a single content. The exception to this rule in the amendment is as follows: However, "in cases where it is technically not possible to block access to the content related to the violation or the violation cannot be prevented by blocking the access to the relevant content, a decision may be made to block access for the entire website.”

2. 31.07.2020

Law No. 7253, adopted on 29.07.2020, amended the Law No. 5651 “On Regulation of Publications on the Internet and Combating Crimes Committed By Means of Such Publication”. It entered into force as published in the Official Gazette dated 31.07.2020 and no. 31202. The aim of this amendment is defined as establishing a relationship of correspondence with social network providers in order to overcome difficulties in Internet users' personal applications or notifications of public institutions.

This amendment introduced the concept of “social network provider” which is: “real or legal persons that allow users to create, view or share contents, such as text, image, sound, voice, location, for social interaction on the Internet.”

The amendment prescribes that the foreign-based social network providers whose networks are accessed by more than one million visitors on a daily basis from Turkey shall designate at least one person as a representative in Turkey.

The persons who think that their personal rights and their right to privacy are violated may apply to the social network provider, to request “blocking access” or “removal of content”. Not only the personal rights, but also the “right to privacy” may be invoked as the justification for blocking access or removal of content.

The social network providers must reply positively or negatively, within 48 hours, to the requests by the persons in cases of violation of their personal rights and their right to privacy. If the social network provider replies to such requests negatively, this reply must include the relevant justification(s). 

Radio - TVs…. Law no. 6112 amendment relevant to the broadcasts on the INTERNET

Law no. 7103 adopted on March 21, 2018 on the Amendment of Tax Laws and Certain Laws and Decree Laws, entered into force by being published in the Official Gazette dated March 27, 2018 and no. 30373 (duplicate).

This amendment introduced the Article 29/A, titled “Presentation of media services via Internet” to the Law No. 6112, on the Establishment of Radio and Television Enterprises and Their Media Services. The Radio and Television Supreme Council (RTÜK) became the enabler and controller authority regarding the Internet. The Internet broadcasts have become subject to the “monitoring” of the RTÜK, which can function “effectively” with regards to the removal of content and/or blocking access.

According to the Article 29/A added to the Law no. 6112, media service provider organizations who have obtained temporary broadcast rights and/or broadcasting license from the Supreme Council may present their media services via Internet in accordance with the provisions of the Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes by means of Such Publication. Media service providers demanding to provide radio and television broadcasting services and on-demand media services exclusively by Internet, must obtain broadcasting license from the Supreme Council. The platform operators demanding the provision of those broadcasting services by Internet must obtain authorization for the transmission of media services from the Supreme Council.

According to Law No. 6112. (Article 3) “media service provider” means the legal person who has editorial responsibility for the choice of the content of the radio, television and on-demand media services and determines the manner in which it is organized and broadcast. “On-demand media service” means the media service provided for the viewing or listening of shows at the moment chosen by the user and at his/her individual request on the basis of a catalogue of shows selected by the media service provider. “Platform operator” means an enterprise which transforms multiple media services into one or multiple signals and provides the transmission of them, through satellite, cable and similar networks either in an encoded and/or un-encoded mode in a way accessible directly by the viewers.

If there is no broadcasting license and the broadcast on the Internet continues: “If it is determined by the Supreme Council that broadcasting services are transmitted on the Internet”, upon the request of the Supreme Council, the criminal judge of peace may decide to block access to the broadcast on the Internet and/or remove the content within 24 hours. This decision will be sent to the Information and Communication Technologies Authority for the necessary action. One has the right to appeal this decision, but it is a judicial remedy with little prospects of a positive outcome.

Whether the content or hosting provider is located abroad will not change the result. Both the Internet broadcasting services in Turkish and located in Turkey; and foreign commercial transmission services in a language other than Turkish, but for the Turkish audience are subject to blocking of the broadcast, by a decision of the Criminal Judgeship of Peace, on the request of the RTÜK.

With this article introduced in 2018: “In order for these enterprises to continue their broadcasting services on Internet, they must obtain broadcasting license from the Supreme Council in the same manner as other enterprises should do under the jurisdiction of the Republic of Turkey; the platform operators within this scope must also obtain an authorization for the transmission of broadcast.” (Article 29/A-3)

There is an exception in paragraph (4) of Article 29/A: Without prejudice to the duties and powers of the Information Technologies and Communication Authority, individual communication is not considered within the scope of this article; and the platforms which are not specifically established for transmitting radio, television and on-demand broadcasting services over the Internet, and real and legal persons who only provide space for radio, television and on-demand broadcast services are not considered to be platform operators within the scope of this article.

According to paragraph (5) of Article 29/A, “The procedures and principles regarding the provision of radio and television broadcasting services and on-demand media services on the Internet, the delivering of broadcasting license to media service providers who provide the transmission of these services on Internet and of authorization for the transmission of media services to platform operators, the monitoring of those broadcasts and the implementation of this provision shall be regulated by the by-law to be adopted, in coordination, by the Supreme Council and the Information and Communication Technologies Authority within six months from the effective date of this provision.”

The mentioned by-law was published in the Official Gazette dated August 1, 2019 and no. 30849; 1 year, 4 months and 4 days later than the entry into force of the Article 29/A added to the Law no. 6112 on March 27, 2018, in contravention to the 6-month time limit as provided by this law. 

"By-law on the Presentation of Radio, Television and On-Demand Broadcasts on the Internet": The purpose of the new by-law is to determine the procedures and principles regarding the provision and transmission of radio, television and on-demand broadcasting services on the Internet, broadcasting licenses to media service providers, authorization of broadcast transmission to platform operators and the monitoring of these broadcasts.

Thus, we now have two basic laws with different purposes for broadcasting on the Internet.

The first one is the “Law on Regulation of Publications on the Internet and Combating Crimes By Means of Such Publication” (No. 5651, adopted on 04.05.2007). The purpose and scope of this law is to regulate the obligations and responsibilities of content providers, hosting providers, access providers and mass use providers, and the principles and procedures of combating certain crimes committed on the Internet through content, hosting and access providers.

Law On the Establishment of Radio and Television Enterprises and Their Media Services. (No. 6112, adopted on 15.02.2011) The purpose of this law is to regulate and supervise radio and television broadcasting services and on-demand media services; to ensure the freedom of expression and information; to determine the procedures and principles in relation to the administrative, financial and technical structures and obligations of media service providers and the establishment, organization, duties, competences and responsibilities of the Radio and Television Supreme Council. 

Provision of broadcast services on the Internet

ARTICLE 29/A- (Added:21/3/2018-7103/82 art.)

(1) Media service provider organizations who have obtained temporary broadcast rights and/or broadcasting license from the Supreme Council may present their media services via Internet in accordance with the provisions of the Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes by means of Such Publication. Media service providers demanding the provision of radio and television broadcasting services and on-demand media services exclusively by Internet, must obtain a broadcasting license from the Supreme Council. The platform operators demanding to provide those broadcasting services by Internet must obtain authorization for the transmission of media services from the Supreme Council.

(2) If it is determined by the Supreme Council that the broadcasting services of the real and legal persons who do not have any temporary broadcast right and/or broadcasting licence obtained from the Supreme Council, or whose right and/or licence was revoked are being transmitted via Internet, upon the request of the Supreme Council, the judge of the Criminal Judgeship of Peace may decide to remove content and/or block access about the relevant broadcasting service on the Internet. Pursuant to the Law No. 5651, this decision shall be sent to the Association of Internet Service Providers for further action. The judge of the Criminal Judgeship of Peace shall adjudicate the request of the Supreme Council and give its summary judgment within twenty four hours at the latest. This judgment may be appealed in accordance with the Code of Criminal Procedure No. 5271 dated December 4, 2004. The third and fifth paragraphs of Article 8/A of Law No. 5651 shall apply to the decision to remove the content and/or block access, provided in accordance with this article.

(3) Notwithstanding that content or hosting provider is located abroad, the provisions of the second paragraph shall also apply to the transmission of the broadcasting services of the media service providers and platform operators under the jurisdiction of another country, which is determined by the Supreme Council to be broadcasting in violation of the international treaties signed and ratified by the Republic of Turkey in relation to the scope of duty of the Supreme Council as well as the provisions of this Law, and to the Turkish broadcasting services of the broadcasting enterprises addressing the audience in Turkey on Internet or featuring commercial communication broadcasting addressed to the audience in Turkey even though the broadcast language is not Turkish. In order for these enterprises to continue their broadcasting services on the Internet, they must obtain a broadcasting license from the Supreme Council in the same manner as other enterprises should do under the jurisdiction of the Republic of Turkey; the platform operators within this scope must also obtain an authorization for the transmission of broadcast.

(4) Without prejudice to the duties and powers of the Information Technologies and Communication Authority, individual communication is not considered within the scope of this article; and the platforms which are not specifically established for transmitting radio, television and on-demand broadcasting services over the Internet, and real and legal persons who only provide space for radio, television and on-demand broadcast services are not considered to be platform operators within the scope of this article.

(5) “The procedures and principles regarding the provision of radio and television broadcasting services and on-demand media services on the Internet, the delivering of broadcasting license to media service providers who provide the transmission of these services on Internet and of authorization for the transmission of media services to platform operators, the monitoring of those broadcasts and the implementation of this provision shall be regulated by the by-law to be adopted, in coordination, by the Supreme Council and the Information and Communication Technologies Authority within six months from the effective date of this provision.”

Sources

  • Project by
    Bianet
  •  
    Reporters without borders
  • Funded by
    BMZ