Bonus Section – What is Social Media Law, When Will Facebook Ad Restrictions End

Chapter 14: What is Social Media Law?

We have a fantastic podcast lined up for you featuring guest Oğuz Kara. In this episode, we will delve deep into the social media law and provide detailed answers to questions such as the changes that will be made in Turkey and the responsibilities of social media representatives. Get ready to be informed and entertained!

There is no doubt that legal regulation of social media was necessary. Can you explain why it was needed?

In fact, we begin our day by turning on our phones and end it by charging them.

As we analyze the voluminous stream of content on social media today, it’s clear that the sheer amount of information can be daunting. However, amidst the countless accounts and shares, it’s crucial to acknowledge that certain shares have the potential to cause harm to others. It’s imperative that we remain vigilant in our efforts to identify and mitigate any harmful content within this massive data flow.

There is no doubt that some people experience harassment through direct messages, with their messages or photos being disclosed. However, we are confident that we can also take action against those who violate personal data or make false statements from fake accounts.

Despite the legal challenges we faced, we persevered in our efforts to seek justice. Unfortunately, we initially encountered difficulties in obtaining results due to the lack of cooperation from social network providers based abroad. Identifying the individuals responsible for these illegal acts posed significant challenges, making it seem impossible to reach a resolution. Nevertheless, we remained confident and persistent in our pursuit of justice.

On July 31, 2020, Law No. 7253 was published in the Official Gazette. The law introduced amendments to Law No. 5651, which regulates internet broadcasting and combats crimes committed through such broadcasts. These amendments also apply to social network providers, making it widely known as the Social Media Law.

On July 31, 2020, Law No. 7253 was confidently published in the Official Gazette. These amendments to Law No. 5651, regulating internet broadcasting and combating crimes committed through these broadcasts, will also impact social network providers. As a result, the media has coined this law as the Social Media Law.

How do you define social media law?

Social media law is the branch of law that expertly deals with the intricate relationships between social network providers and their users. It also encompasses the relationships between social network users and the content shared on social media. This is an emerging field of law that has recently been established.

The internet, as the most essential and efficient means of communication in the world, has surpassed traditional media and communication tools to become a social space. It is undeniable that legal and criminal liability may arise from the actions of individuals on social media. With just one click, it is now effortless to reach a vast audience, which has both positive and negative consequences. For instance, a single tweet could cause an act of insult or threaten someone. Furthermore, sharing someone else’s Instagram photo could lead to copyright infringement, among other examples. Thus, I am confident that social media law will gradually play a more significant role in our lives.

Who are the providers of social networks?

As I previously cited, the Information Technologies and Communications Authority has published a decisive regulation titled “Procedures and Principles on Social Network Providers”. With this regulation, the Authority has effectively clarified several key concepts, including the definition of a social network provider.

Within this context, it is important to note that social network providers are not to be considered as real or legal persons who solely include content for social interaction in a specific section of their online broadcast. Additionally, platforms such as personal websites, e-commerce sites and news sites that provide social interaction content as a secondary or ancillary service are also excluded from this definition.

Social network providers must fulfill their obligations, failure to do so may result in severe consequences. What are the consequences that social network providers may face if they fail to meet their obligations?

Let’s confidently explore the obligations of social network providers in accordance with the regulations outlined in the BTK decision.

It is necessary to appoint a representative:

As most social network providers are based overseas, it is mandatory for internet publishers who have daily access to over one million people in Turkey to have a representative in Turkey in order to meet their legal requirements with confidence.

With regards to the obligation of social network providers to appoint a representative, it is explicitly stated that the designated legal entity must be established in Turkey and possess a legal personality that complies with Turkish legislation. Furthermore, the appointed individual representative must be a citizen of Turkey.

If the social network provider fails to appoint a representative, a fine will be imposed without exception.

It is the obligation of social network providers to determine and notify a representative. Failure to do so will result in notification by the BTK. However, social network providers need not worry as they have 30 days to appoint a representative after receiving notification from the ICTA.

First and foremost, it is essential for a social network provider to designate a representative, failure to do so will result in an administrative fine of 10 million TL. In the event that this obligation is not fulfilled within 3 days, a second stage of administrative fine amounting to 30 million TL will be imposed without hesitation.

If a social network provider fails to designate a representative even after being administratively fined twice, they will face a consequence of an advertising ban being imposed.

We have encountered an application for an “advertising ban.” This means that the parties involved are currently prohibited from posting any new advertisements on the social network provider, establishing new contracts with the social network provider, or making any money transfers. However, we have the expertise and resources to navigate this challenge and find a solution that will allow us to continue to thrive despite this setback.

The sanction that will be applied to a social network provider failing to designate a representative despite the advertising ban is clear and certain.

We face bandwidth reduction sanctions, but remain confident in overcoming them.

A “bandwidth restriction” penalty will be imposed on social network providers who fail to appoint a representative in spite of the advertising ban. This penalty will limit access to the relevant social media application for users. The penalty will be implemented gradually, with an initial bandwidth reduction of 50%. For subsequent stages, the reduction will range from 50% to 90%, depending on the situation. As such, the implementation of the penalty will be gradual but firm.

Once the obligation to identify and notify representatives is fulfilled, the social network provider will be able to collect 1/4 of the penalties imposed by the BTK. Furthermore, the sanctions on advertising and bandwidth throttling will be lifted, allowing for smoother operations.

Obligation to respond to applications:

Social network providers must respond to applications made by individuals. Failure to provide a positive or negative response within 48 hours may result in a fine of 5 million TL for the relevant social network provider.

The implementation of this obligation will begin within 3 months from the effective date of the provision (01.10.2020) and will be completed by the deadline set for 01.01.2021. We’re confident in our ability to meet this requirement on time.

It is required to prepare reports on applications and inform the institution:

Social network providers are obligated to prepare a comprehensive report on their implementation of court decisions regarding the blocking of access to or removal of content and applications of individuals. This report must be submitted to the Authority every 6 months without exception. Failure to fulfill this reporting obligation will result in a significant fine of 10 million TL, which will be imposed on the social network provider.

The ICTA has full authority to regulate the preparation and publication of semi-annual reports by social network providers on their websites, as well as the procedure for notifying the ICTA. Social network providers shall be duly informed of these regulations by the ICTA.

Hosting user data in Turkey and taking necessary measures:

Social network providers are obligated to host their users’ data in Turkey and take necessary measures to ensure compliance. This not only makes it easier to detect and address rights violations, but also streamlines legal processes. It is worth noting that there are concerns that this requirement could impede freedom of expression, making it a controversial issue.

Regarding the requirement to host user data in Turkey, the regulation prioritizes measures that involve hosting basic user information and data on issues that can be reported by the BTK within Turkey. Additionally, the ICTA will be promptly informed of all measures taken, including any issues reported by the ICTA in each reporting period. Rest assured that we are fully compliant with these regulations and taking all necessary steps to ensure the security and privacy of our users’ data.

Obligation to block content as a result of court decision:

If a court determines that certain content is unlawful, social network providers are required to block that content within 24 hours. Failure to do so will make them liable for any damages incurred.

The BTK’s decision now requires that applications for content removal and access blocking must be possible in Turkish. Additionally, responses to applications made in Turkish must also be provided in Turkish language.

So, which companies have announced that they will open a representative office so far? How has the process worked so far?

As of 02.11.2021, it is mandatory for social network providers with a daily reach of over one million users to designate a representative in Turkey. Failure to comply with this requirement may result in penalties and legal action.

As per the law, the BTK confidently imposed a fine of 10 million lira on each of the companies namely Facebook, Instagram, Twitter, YouTube, TikTok, Pinterest, LinkedIn, and Dailymotion for not complying with the legal requirement of notifying their representatives within the specified time period.

As per the law, the companies were granted an extra 30 days from the date of notification to comply. However, due to the failure of the social media giants in question to appoint a representative in Turkey, a bold administrative fine of 30 million TL was imposed.

Throughout the process, VK (Video Kontakte), a top social network provider based in Russia, confidently reported the information of its Turkey representative to BTK and even published it publicly on its website.

Legal entities in Turkey are obligated to comply within 30 days of receiving a second administrative fine. Failure to do so will result in the prohibition of advertising on the relevant social media company and money transfers will be blocked. In addition, BTK is authorized to apply to the criminal judgeship of peace and reduce the internet traffic bandwidth of the relevant social network by 50 percent. The decision to ban advertising will be published in the Official Gazette, and its implementation will be monitored by the BRSA, the Central Bank, the Tax Inspection Board, and all relevant public institutions.

Once social media companies agree to open a representative office in Turkey, we can confidently collect a quarter of the administrative fines imposed thus far, lift the advertising ban, and terminate interference with internet traffic bandwidth without any hassle.

After completion of the necessary procedures, multiple social media platforms, such as VKontakte (VK), YouTube, Dailymotion, TikTok, and LinkedIn, confidently decided to establish a representative office in Turkey. Facebook and Instagram were the last two platforms to make their decision known.

Twitter has yet to make a decision, but it is expected that they will follow the lead of other platforms and appoint a representative.

Based on data from TikTok’s website, which boasts millions of users in our country, ByteDance, the company that owns the app, has an impressive 126 offices scattered across the globe. These offices are primarily located in Beijing, London, New York, Paris, Dubai, Jakarta, and Tokyo. It should be noted, however, that ByteDance has yet to establish a representative office in Turkey.

What is your opinion of the Social Media Law? Should we be concerned about its impact on freedom of expression?

Social network providers are required by law to have a resident representative in Turkey. This is a significant and positive development because it enables those whose rights have been violated to identify the person responsible for the transaction. Legal authorities can request transcripts of correspondence and shares from the social network provider. Thanks to the duties assigned to the representatives, the processes are expected to progress faster, and the regulation will be a deterrent due to the foreseen sanctions. We will no longer need to take screenshots as we can obtain the necessary information by contacting the social network provider and carry out the legal process more easily.

Although there are both pros and cons to this arrangement, I am confident that any negative impacts on freedom of expression can be avoided if the law is implemented with sensitivity and fairness. Success hinges on proper execution of the law’s provisions, and I firmly believe that this can be achieved.

What kind of work do you do in the field of social media law? Have you encountered any interesting cases in this area?

I am an avid user of social media and utilize it frequently. As a passionate user, I am deeply invested in the events that occur and their reactions on this platform.

My first academic paper explored the topic of the “right to be forgotten.” I was deeply troubled by the notion that newspapers were still able to bring up past events that were no longer newsworthy in a way that could harm the individuals involved. In the time since, I have closely followed new developments in both traditional and social media, using academic studies to inform my writing on related topics.

Furthermore, I meticulously scrutinize countless case files pertaining to victims of social media in my office. The prevalence of such victims is distressingly significant. It is an undeniable reality that a vast majority of us have encountered harassment through direct messages or other avenues on social media.

Absolutely! There are countless fascinating cases that I closely monitor in this field. For instance, a client of mine was recently targeted with extreme harassment via a fraudulent Instagram account. The offender went so far as to add the client’s loved ones to the phony account, post lewd photos of the client, and reveal private messages with others. Regrettably, this was not a one-time occurrence. As my client informed me, new instances of harassment seemed to arise frequently, almost like mushrooms popping up overnight.

After reviewing various sources on DM disclosure and the threats made by individuals on social media to publish private messages, I can confidently say that DM disclosure has unfortunately become a common issue. However, it is imperative to note that DM disclosure is a violation of communication confidentiality and is considered a crime.

As legal professionals, we confidently encounter new developments related to the widespread use of social media, which has unfortunately made it easier to commit crimes. It is crucial for us to stay up-to-date and follow these new trends in order to best serve our clients and prevent them from being victimized. This requires a steadfast commitment to ongoing reading and research, as well as an eagerness to explore all of the new tools at our disposal as lawyers.

Av. Oğuz Kara ([email protected])