On 19 January2021, Information and Communication Technologies Authority (“ICTA”) published three decisions numbered 3769, 3768, 4202 and dated 15.01.2021 in relation to the banning of advertisements on social media providers namely Pinterest Inc., Twitter Inc. and Twitter Inc. (Periscope/Scope) which failed to fulfill their obligations to appoint a representative in Turkey as rendered mandatory with the recent amendments made to the Internet Law No. 5651 in July 2020. (“Law”).
Further to the said decisions, contracts shall no longer be executed with Pinterest Inc., Twitter Inc. and Twitter Inc. (Periscope/Scope) for the purpose of advertising and no money transfer shall be made to the said social network providers regarding advertisement transactions.
On the other hand, service providers namely Youtube, Tiktok, Linkedin and Facebook have recently published statements on their websites declaring that they will comply with the provisions of the Law requiring the appointment of a local representative in Turkey.
As per the Law, foreign-based social network providers (having more than one million visitors in a day from Turkey) shall;
- assign at least 1 person as a representative in Turkey;
- publish their representatives’ contact information on their website (which needs to be easily visible and directly accessible). Social network providers are further obliged to report this person’s identity and contact information to ICTA;
- take necessary actions to keep the data of the users from Turkey, within Turkey;
- respond to the applications to be made by individuals invoking violation of their personal or privacy rights based on a content in the internet, pursuant to Article 9 and 9A of the Law, within 48 hours as of the application;
- inform ICTA semi-annually with reports containing statistical and categorical information regarding the implementation of the decisions notified with respect to the removal and/or blocking the access of the content and the applications made within the scope of violation of personal rights and privacy.
- Consequences of failure to comply with the appointment and notification of a representative:
i. ICTA shall serve a notification on social network providers which fail to comply with the requirement on the appointment and notification of a representation. An administrative fine in the amount of TRY 10 million shall be imposed on the social network provider by the President of ICTA in case the social network provider fails to fulfill this obligation within 30 days as of the notification date.
ii. If this obligation is still unfulfilled by the social network provider within 30 days as of the issuance date of the fine, a second fine of TRY 30 million will also be imposed.
iii. If the obligation is still unfulfilled despite the second fine, real or legal persons who are resident and taxpayer in Turkey will be banned from placing advertisement to such social network providers (“Advertisement Ban”); in this case, establishment of a new contract or money transfer for the purpose of advertisement will not be legal.
iv. If the obligation is still unfulfilled within 3 months following the Advertisement Ban, ICTA may apply to the Criminal Court to restrict the internet traffic bandwidth by 50%.
v. If the noncompliance still lasts for further 30 days following the Criminal Court’s decision, ICTA can restrict the band width by 90% (the Court has the discretion to determine a band width below 90% to the extend it is not less than 50%). The court’s decision shall be submitted to ICTA for the purpose of informing the access providers with these restrictions. Access providers shall implement the decisions of the criminal court immediately and latest within four hours following the notification. The decisions of the Criminal Court shall automatically become void once the requirement on the appointment of representative is fulfilled by the social network provider and is notified to ICTA.
Within this scope, the third phase of the available sanctions is now imposed on Pinterest Inc., Twitter Inc. and Twitter Inc. (Periscope/Scope) and if the said companies still continue abide by the requirements, they will risk being faced with a reduction of their internet traffic bandwidth.
- Consequences of failure to comply with data localization:
An administrative fine of TRY 5 million might be imposed on those social network providers which fail to comply with the data localization requirement.
- Consequences of failure to comply with reporting obligation: