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What Would A User Generated Content Platform Provider Need To Know When Entering Turkish Market?
From promoting a new brand to preserving the market presence of an already established one, User Generated Content (“UGC”) has become an uncanny tool to initiate and preserve consumer engagement. With that, social network providers have transformed from mere conduits of social interaction between individuals, to multifaceted platforms that enable businesses to reach their consumers. As UGC became more and more mainstream, pulled millions of users and created some of the biggest tech companies, many countries try to catch up with regulations such as Turkey.
We aim to explain the two main regulatory obligations a UGC platform may need to know; (i) the internet legislation and (ii) media legislation and not to focus on legislations applicable to companies that are willing to enter Turkish market in general such as corporate law, commercial law, data protection law and competition law.
Relevant types of service are defined under Article 4 of the Regulation as follows:
[1] Please see https://kararlarbilgibankasi.anayasa.gov.tr/BB/2018/14884 (last accessed on March 7, 2022) [2] Removal and access ban procedure for a set of catalogue crimes i.e. encouraging suicide, sexual abuse of children, facilitating use of drugs and stimulants, obtaining materials dangerous to health, obscenity, prostitution, enabling and providing location for gambling, crimes against Ataturk and crimes relating to betting and gambling on football and other sports, including Article 8/A, which is the emergency removal procedure for national security, which obligates removal within four hours upon notice. [3] Removal and access ban procedure for personal right violations including Article 9/A, which is the removal procedure for violation of privacy of private life. [4] Information such as source IP address, destination IP address, communication date and time information, queried page address, transaction information (GET, POST command details) and result information [5] Please see https://www.rtuk.gov.tr/ust-kurul-baskanligi-son-gunlerde-ozellikle-bazi-basin-ve-yayin-organlarinda-yer-alan-rtuk%E2%80%99e-yonelik-haksiz-ithamlar-karsisinda-basin-aciklamasi-yapti/4217 (accessed on March 7, 2022)
(i) Need-to-Know Obligations In Terms of Internet Law
The first regulation of the internet was the Law on Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts (“Law No. 5651”), which was changed significantly over the time. The latest pilot decision with application no. 2018/14884 shows that there is still room for development for the Law No. 5651[1]. Under the Law No. 5651, there are three main actors (i) content providers, (ii) hosting providers and (iii) access providers. In the simplest sense, content providers are the content creators, which are users in UGC platforms, the hosting providers are the actors that host the means for the content creators such as providing platforms, which would be the UGC platforms themselves (except the content they create their own) and access providers are those that provide technical access to UGC platforms such as internet service providers. As the hosting provider itself becoming a content provider is a rare occasion, we will be focusing on hosting provider liabilities under the Law No. 5651. For sure, as the internet environment has no location, different jurisdictional rules may clash and international rogatory and mutual legal assistance procedures may be in question, however as these would depend on the situation and legal rules the headquarters of the hosting provider is in, we are not taking the conflict of law principles into question for this article.- Hosting providers are obligated to provide information of their residence/headquarters location, electronic communication address and phone number in their website, under communication title accurately, up-to-date and completely.
- Hosting providers are not obligated to check the content it hosts or research whether there is an unlawful activity. However, hosting providers are obligated to remove the content if it is notified in accordance with Article 8[2] and 9[3] of the Law No. 5651.
- Hosting providers are obligated to store traffic[4] information for the services they host content for six months.
(ii) Need-to-Know Obligations In Terms of Media Law
UGC providers providing media and streaming services or platforms may be subject to media legislation, the main of which is the Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises (“RT Law”). Article 29/A of the RT Law and the Regulation on Provision of Radio, Television and On-Demand Broadcasts on Internet Medium (“Regulation”) could encompass such UGC providers. The Regulation and RT Law defines media service provider (“MSP”) as the legal entity that has “editorial responsibility” for choosing the content of radio, television and on-demand broadcast services and determines the manner in which this service is organized and broadcasted. The “editorial responsibility” is the main and probably the most important distinction to determine whether a UGC provider to be subject to the RT Law and Regulation. In the simplest sense, editorial responsibility is correlated with the control over the content. A UGC platform operator that merely provides hosting for content would be outside the scope while a platform that has editorial control such as creating a specific schedule for broadcasting, list of contents, deciding on what to include or not to the platform may be considered within the scope. In that sense, small interventions not aiming an editorial customization such as implementation of policies, removal or restriction of unlawful content, recommendation algorithms or child safety measures should not be deemed sufficient to be considered having editorial control. Pursuant to the Regulation, media service providers that are willing to broadcast their radio, television and on-demand broadcast services solely through internet must obtain a broadcast license from Radio and Television Supreme Council (“RTSC”). The Regulation is applicable to the content or hosting providers in a foreign country, or for media service providers that are under the jurisdiction of another country, or for media service providers which broadcast in Turkish through internet targeting Turkey or in another language but targeting Turkey and including commercial broadcasts to Turkey, if RTSC determines these broadcasts to be in violation of RT Law and international treaties. Per paragraph (3) of Article 5 of the Regulation following licenses are granted to the following broadcasting types:INTERNET-RD | Granted for media service providers that file a request to provide radio broadcasts through Internet |
INTERNET-TV | Granted for media service providers that file a request to provide TV broadcasts through Internet |
INTERNET-IBYH | Granted for media service providers that file a request to provide on-demand broadcasting service through Internet |
- On-demand broadcasting service through Internet: Except for individual communication services, broadcast services which are watched or listened by the users upon their personal request at the time determined by the user and subject to a program catalogue which has been specified by a media service provider, through Internet, by direct or conditional access.
- Radio broadcast through Internet: Except for individual communication services, audio and data broadcast of programs through Internet based on a broadcasting schedule.
- TV broadcast through Internet: Except for individual communication services, broadcasting of an encrypted or unencrypted audio-visual broadcasting service through Internet, provided by a media service provider for the purposes of watching programs based on a broadcasting schedule.
[1] Please see https://kararlarbilgibankasi.anayasa.gov.tr/BB/2018/14884 (last accessed on March 7, 2022) [2] Removal and access ban procedure for a set of catalogue crimes i.e. encouraging suicide, sexual abuse of children, facilitating use of drugs and stimulants, obtaining materials dangerous to health, obscenity, prostitution, enabling and providing location for gambling, crimes against Ataturk and crimes relating to betting and gambling on football and other sports, including Article 8/A, which is the emergency removal procedure for national security, which obligates removal within four hours upon notice. [3] Removal and access ban procedure for personal right violations including Article 9/A, which is the removal procedure for violation of privacy of private life. [4] Information such as source IP address, destination IP address, communication date and time information, queried page address, transaction information (GET, POST command details) and result information [5] Please see https://www.rtuk.gov.tr/ust-kurul-baskanligi-son-gunlerde-ozellikle-bazi-basin-ve-yayin-organlarinda-yer-alan-rtuk%E2%80%99e-yonelik-haksiz-ithamlar-karsisinda-basin-aciklamasi-yapti/4217 (accessed on March 7, 2022)