AMENDMENTS ON LAW NUMBERED 5651, “the INTERNET LW OF TURKEY”
Ozge Hakdan Erguc
Attorney at Law
The Law numbered 5651, which is widely known as Internet Law, was enacted on 23 May 2007, and published on Turkish Official Gazette numbered 26030. A draft law amending Law numbered 5651, was submitted to the Parliament on 14th December 2013 and all articles of the draft law have been approved by the Parliament and sent to the President of Turkish Republic Abdullah Gül. The President has 15 days to consider draft law and there are 2 options at this point: either the President will approve the draft law and it will be entered in force after it’s published in Official Gazette or the President will send the draft law back to the Parliament. We are currently waiting for President’s consideration.
With the draft law, new definitions such as “association”, “blocking access”, “ URL Address”, “Removal of the Contents”, “Notification Process” have been added to article 2 of the law in effect. Draft law is providing to be notified of whom carries out such activities within the context of the Law numbered 5651, by e-mail or other communication facilities obtained from websites, domain names, IP addresses. The draft law has amended the 4th article of the current law by adding one more paragraph to the article and provides content provider to deliver the information as requested by the Telecommunications Communication Presidency (TİB) and to take measures notified by the TİB.
The 5th article of the current law which regulates liabilities of hosting provider has been amended by extending hosting providers liabilities. According to the draft law, hosting providers will be liable to retain traffic data related to hosting activities from 1 to 2 years and to provide these traffic data’s accuracy, integrity and confidentiality. Hosting providers will be liable to deliver information to TİB as requested and to take measures notified by the TİB. In the current law, service providers are obliged to retain traffic data from 6 months to 2 years.
According to the amendments on 6th article of the current law, access providers will be required to take measures to block access to alternative access methods. Access providers will be liable to deliver information to TİB as requested and to take measures notified by the TİB. There is a new provision regulated by the draft law as article 6/A which is establishing “Access Providers Association”. According to the new provision of the draft law, the main purpose of this association is implementing the access blocking orders of which are out of the scope of 8tharticle of the law.
According to the draft law article 6/A the association will be established as a private legal entity and the headquarter of the Association will be in Ankara. The Association will be comprised of all Internet Access Providers and other corporations providing internet access service authorized in the scope of Electronic Communication Law numbered 5809. The Access Providers Association will implement all blocking access orders which are out of the scope of 8th article of the law. The orders out of the scope of 8th article will be sent to TİB. Notification of blocking order that made to TİB will be regarded as made to access providers. If The Association considers that the orders are not compliance with the law, they can object to the orders.
According to the amendments of 8th article, blocking access orders as a protection measure can be temporary in case of conformity with the main purpose. The main amendment on 8th article is undoubtedly removal of imprisonment of hosting and access providers in case of not implementing of blocking access orders as a protection measure.
Draft law has changed the title of 9th Article as; “Removal of Content and Blocking Access” , in current law it is “Removal of Content and Right of Reply” . According to the amended provision, Individuals and legal entities who claim that their personal rights have been violated through internet publication, should apply to content provider, if they can not reach to content provider, they can apply to hosting provider and request them removal of content or they can directly apply to judge of criminal court of peace and request blocking access to content. Content or hosting providers have to respond these requests of individuals or legal entities who claim that their personal rights have been violated through publication on the internet, in 24 hours at the latest. In accordance with demands of individuals or legal entities , the judge may issue an order to URL-based blocking access in the scope of article 9th.
Unless it is necessary, the judge can not issue an order to block access to whole publication on related website. However; if the judge makes a decision that URL-based blocking would not prevent violation, blocking access to whole publication on the internet can be ordered by the judge, by providing its legal grounds. The applications made to the judge in the scope of article 9th, have to be concluded in 24 hours at the latest without a conducting a hearing by judge.
These orders may be appealed according to Turkish Code of Criminal Procedure numbered 5271. The blocking access to content order sent to access provider by the Association has to be implemented in 4 hours at the latest. The other new provision of draft law is the 9/A article in title of “Blocking Access to Content Due to Right of Privacy”. This new article includes a new blocking measure due to individual privacy violations.
According to the article 9/A individuals, legal entities and institutions and organizations who claim that their right of privacy has been violated through internet, can directly apply to the Presidency (TİB) and request blocking access measures. The Presidency (TİB) immediately notifies the Association about these applications in order to be implemented in 4 hours at the latest. The Presidency’s blocking access orders are only based on URL.
Individuals, legal entities and institutions and organizations who claim that their right of privacy has been violated through internet, have to submit to the judge of court of peace within 24 hours from the application to the Presidency for judge’s order. After the submission, the judge considers whether there is a violation or not, and has to issue an order within 48 hours and send the order to the Presidency. Otherwise the blocking order is going to be invalid. Judge’s blocking orders may be appealed according to Turkish Code of Criminal Procedure numbered 5271. The most important and highly disputed amendment is on the last paragraph of article 9/A. According to the last paragraph of article 9/A of draft law, in non-delayable cases according to protection of privacy and rights and freedom of people, The President (TİB President) or, by order of Minister of Transport and Communication, The Presidency issues a blocking access order. The draft law does not regulate any objection procedure in respect to blocking access order of the President or Presidency by order of Minister. The main amendments on the Law numbered 5651 which is known as Internet Law of Turkey, have been summarized above. The Draft Law which is on Turkish Republic’s President’s consideration presently, has been highly criticized. The President has to submit his consideration until 24th February 2014 and his decision is eagerly awaited by all of us.