In Turkey this past week, the discussion revolved in large measure around a law passed in May, 2007, called 5651. It is this law that the Transportation and Telecommunications Ministry is charged with implementing, including Internet filtering. Translation credits to Turkish lawyers: ELIG, Attorneys-at-Law.
LAW ON REGULATION OF BROADCASTS VIA INTERNET AND PREVENTION OF CRIMES COMMITTED THROUGH SUCH BROADCASTS
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Law No.5651 |
Date of Acceptance: 04/05/2007 |
Purpose and Scope
Article 1- (1) 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 grounds and procedures of prevention of crimes committed on the Internet through content, hosting and access providers.
Definitions
Article 2- (1) For the application of this Law;
a) Ministry means Ministry of Transportation,
b) Presidency means Communications Presidency of the Authority,
c) President means President of the Communications Presidency,
d) Information means the meaningful form of data,
e) Access means to connect and be able to use the Internet,
f) Access Provider means real persons or legal entities that provide access to Internet for its users,
g) Content Provider means real persons or legal entities that create, amend or provide all kinds of information or data presented to users on the Internet,
h) Internet Medium means, except for personal or institutional computer systems or computer systems used for communication, any medium formed on the Internet that is open to public,
i) Broadcasts Made on the Internet (Medium) means Data available on the Internet (Medium) content of which is reachable by unlimited number of persons,
j) Monitoring means to follow up the Information and the Data available on the Internet without interfering the Data,
k) Authority means Telecommunications Authority,
l) Mass Use Provider means real persons or legal entities providing people the opportunity to use the Internet for a pre-determined period of time in a determined place,
m) Traffic Information means information, such as parties, time, period, type of the services used, amount of the transferred data and connection points, related to any kind of Access to the Internet,
n) Data means all kinds of input that may be processed by a computer,
o) Broadcast means Broadcasts Made on the Internet (Medium),
p) Hosting Provider means real persons or legal entities that provide or run systems to contain services and content.
Responsibility of Disclosure
Article 3 – (1) Content, Hosting and Access Providers are responsible to provide their identification information on the Internet in a manner by which the users have access to such information, pursuant to the principles and procedures set forth in the regulation; and keep such information up-to-date.
(2) Content, Hosting or Access Provider who fails to fulfill the above mentioned responsibility shall be imposed an administrative fine of TRY 2,000 up to TRY 10,000 by the Presidency.
Responsibility of the Content Provider
Article 4 – (1) Content Provider is responsible for any kind of content it presents on the Internet.
(2) Content Provider shall not be responsible for the content belong to a third party to which it gives a link. However, if it is clear from the Content Provider’s way of presenting such third party content, to which the link leads, that it adopts the content and aims to provide access to that specific content, it may be held liable pursuant to general provisions.
Responsibilities of the Hosting Provider
Article 5 – (1) Hosting Provider is not responsible to check the hosted content or make a research whether the content constitutes an unlawful activity.
(2) Without prejudice to the provision regulation the Hosting Providers criminal liabilities, the Hosting Provider shall block access to (ban the broadcast of) the illegal content, provided that it has been informed about the illegal content pursuant to Articles 8 and 9 of this Law; and on the basis that it is technically possible to block access to such content.
Responsibilities of the Access Provider
Article 6 – (1) Access Provider:
a) Is responsible for blocking access to an illegal content broadcasted by its user, provided that it has been informed about the illegal content pursuant to this Law and it is technically possible to block access to such content.
b) Shall save the Traffic Information indicated in the regulation, for a period that will be determined by the Regulation, which may not less than six months and more than two years.
c) Is required to notify the Authority, Content Providers and its customers at least three months prior to termination, if it decides to terminate its operations and deliver the saved Traffic Information to the Authority pursuant to the principles and procedures set forth in the regulation.
(2) Access Provider shall not be responsible to check whether the content accessed via itself is illegal or raises any responsibility.
(3) Access Provider that fails to comply with the responsibilities set forth under subsections (b) and (c) of paragraph 1 shall be imposed an administrative fine of TRY 10,000 up to TRY 50,000.
Responsibilities of Mass Use Provider
Article 7 – (1) Mass Use Providers who provide mass use in a commercial manner shall obtain permission from the local district official. Information regarding such permission shall be forwarded to the Authority by the local district official within 30 days. These are supervised by the local district official. Procedures and principles regarding granting the permission license and supervision are provided by the Regulation
(2) All Mass Use Providers, regardless whether acting in a commercial manner or not, shall take protective measures for blocking access to illegal content.
(3) Any person who fails to comply with the responsibility set forth in paragraph 1 shall be imposed an administrative fine of TRY 3,000 up to TRY 15,000 by the local district official.
Access Blocking Decision and Execution of Such Decision
Article 8 – (1) Access to a broadcast on the Internet may be blocked if there is sufficient suspicion that the content constitutes one of the crimes mentioned below herein:
a) Crimes set forth under Turkish Criminal Code dated 26.09.2004 and numbered 5237:
1) Provocation for committing suicide (Article 84);
2) Sexual harassment of children (Article 103, paragraph 1);
3) To ease the usage of drugs (Article 190);
4) Supplying drugs which are dangerous for health (Article 194);
5) Obscenity (Article 226);
6) Prostitution (Article 227);
7) To provide place and opportunity for gambling (Article 228);
b) crimes mentioned in the Law on Crimes Against Atatürk dated 25.07.1951 and numbered 5816.
(2) Access blocking decision shall be granted by a judge during the investigation period and by a court during the prosecution period. A public prosecutor may also give access blocking decision during the investigation period, if failure to do so might result in delay and cause irreparable damages. However, public prosecutor shall submit such decision to a judge for approval within 24 hours, and the judge should grant a decision within the following 24 hours. If the access blocking decision is not approved by the judge, the precaution decision shall immediately be eliminated by the public prosecutor. Access blocking decision given as a protective precaution may be objected pursuant to provisions of Criminal Procedural Law dated 04.12.2004 and numbered 5271.
(3) A copy of the access blocking decision given by a judge, a court or a public prosecutor shall be sent to the Presidency for execution.
(4) If the Hosting Provider or the Content Provider of a broadcast which constitutes the crimes set forth in paragraph (1) resides outside of Turkey, or although the Hosting Provider or the Content Provider resides in Turkey the content constitutes the crimes mentioned in sub-paragraphs (2) and (5) of sub section (a) of paragraph 1, the Presidency shall ex officio decide for access blocking. Such decision shall be notified to the Access Provider and the Access Provider is required to execute the decision.
(5) Access blocking decision shall immediately and at the latest within 24 hours as of the notification of the decision, be executed by the Access Provider.
(6) If the persons broadcasting the content that is subject of the access blocking decision are identified by the Presidency, the Presidency shall file a criminal complaint to the public prosecutor.
(7) If it is decided as a result of the investigation that there is no need for prosecution, the access blocking decision shall be void per se. In such case, the public prosecutor sends a copy of the decision for ceasing the prosecution to the Presidency.
(8) If the court reaches a verdict of acquittal during the prosecution, the access blocking decision shall be void per se. In such a case, the court sends a copy of the decision of acquittal to the Presidency.
(9) In case the broadcasts that constitute the crimes mentioned in paragraph 1 are removed, the decision regarding blocking the access is eliminated by the public prosecutor during investigation period and by the court during the prosecution period.
(10) If the Hosting or Access Provider fails to comply with access blocking decision that was given by a public prosecutor as a protective precaution, the person responsible for publications or broadcasting at such Hosting or Access Provider may be punished with imprisonment from 6 months up to 2 years, provided that the crime does not necessitate a heavier penalty.
(11) If the Access Provider fails to comply with the access blocking decision that was given by the Presidency as an administrative precaution, the Access Provider shall be imposed an administrative fine of TRY 10,000 to TRY 100,000 by the Presidency. If the Access Provider fails to comply with the access blocking decision within 24 hours as of the issuance of the administrative fine, upon the request of the Presidency, the Authority may decide for cancellation of the authorization of the Access Provider.
(12) Legal proceedings may be initiated against the decisions of the Presidency or the Authority for administrative fines, given as a result of faults defined in this Law, pursuant to Administrative Procedural Law dated 06.01.1982 and numbered 2577.
Suspension of Broadcast of the Content and Right Of Reply
Article 9 – (1) Any real person or legal entity, who claims that his rights are violated due to a content may apply to that Content Provider, or to the Hosting Provider if the Content Provider may not be reached, and request suspension of broadcast of such content, and instead publish/broadcast of his reply, which shall not exceed the scope of the suspended content for one week period.
The Content or Hosting Provider shall comply with such request within two days as of receipt of the written request. If the request is not complied within this period, it will be deemed to be denied.
(2) In case the request is deemed to be denied, the complainant may apply to the relevant Criminal Court of Peace within 15 days and request from the court to render a decision for suspension of broadcast of such content, and instead publish/broadcast of his reply, which shall not exceed the scope of the suspended content for one week period. The Court shall decide within three days without holding any hearing. Decision of the Court may be objected pursuant to relevant provision of the Criminal Procedural Law.
(3) The Content or Hosting Provider shall suspend the broadcast of the content and start broadcasting of the complainant’s reply within two days as of the receipt of the relevant Court order.
(4) The responsible person who fails to comply with the Court order in a timely manner and by fulfilling conditions set forth in this Article 9, shall be sentenced to prison for six months to two years. In case the content or Hosting Provider is a legal entity, this article shall be applied to the person who is responsible for broadcasting.
Administrative Structure and Duties
Article 10- (1) Duties assigned with the Law are fulfilled by the Presidency of the Authority.
(2) Permanent positions opened for certain officers who may work for the Presidency listed in the Annex and such positions are also added to the Annex (II) of the Radio Law dated 05.04.1983 and numbered 2813. Communications experts employed by the Presidency shall have the same financial, social rights and aids with the Telecommunication Experts of the Authority. The merit system to be applied, without prejudice to their vested rights, for Communications Experts of the Presidency shall be determined with the regulation be adopted within the six months as of the effective date of this Law.
(3) Purchase of all assets and services required for accomplishment of the duties assigned to the Presidency by the Law, shall be paid from the budget of the Authority. Except for the fines and decisions of banning from tenders, the provisions of Public Tender Law dated 04.01.2002 and numbered 4734 and Public Tender Agreements Law dated 05.01.2002 and numbered 4735 shall not be applied such purchases.
(4) Save for other authorities and duties assigned to the Presidency by other laws, Authorizations and duties of the Presidency under this Law are;
a) To conduct activities to prevent broadcasts or activities on the Internet having a content that constitutes one of the crimes listed in this Law by establishing coordination between the Ministry, police forces, related public institutions and content, Hosting and Access Providers and related non-governmental organizations; and with this aim, if need be, to establish work groups to that would be financed by the Authority in accordance with the procedures to be adopted by the relevant regulation.
b) To monitor contents of the Broadcasts Made on the Internet and, if the content constitutes any of the crimes listed in this Law, to take precautionary measures as set forth under this Law to block access to such broadcasts.
c) To determine the scope, timing and means of monitoring the contents of the Broadcasts Made on the Internet.
ç) To determine the principles and procedures for granting permission to Mass Use Providers by the local district officers with the authorization of the Authority; and the filtering or access blocking systems requirements for such permission.
d) To establish or to cause to establish all necessary technical background, including but not limited to establishing monitoring and information denouncement centers to prevent the crimes set forth under the first paragraph of Article 8 of the Law by monitoring the Broadcasts Made on the Internet; and to operate or to cause to operate such establishments or systems.
e) Considering the relevant principles for filtering, shielding and monitoring to be made on the Internet services that are open to public, to determine the minimum criteria for software and production of hardware to be used for such purpose.
f) To maintain the coordination and cooperation between the international institutions and organizations that deal with the Internet or information technologies.
g) To assist the authorized police forces and investigation authorities to prevent promotion, import, possessing, leasing and selling of any product with a visual, written or audible content, subject of which is committing crimes listed under Article of this Law via Internet; and to maintain the coordination with respect to the same.
(5) The Presidency shall maintain the coordination with the Internet Board, which shall be established pursuant to the Supplementary Article 1 of the Law on Structure and Duties of Ministry of Communications No. 3348 and be composed of representatives to be elected among the Ministry of Justice, Ministry of Internal Affairs, Ministry of State responsible from children, women and family, the Authority and all other relevant ministries, public institutions and Internet service providers and relevant non-governmental organizations. The Presidency shall also take all necessary measures with respect to the recommendations made by the Internet Board on determination of the broadcasts with the content to be subject to filtered and banning; or on such matters.
Regulations
Article 11- (1) The principles and procedures with respect to the enforcement of this Law shall be governed by the regulations to be issued by the Prime Ministry after obtaining opinions of the Ministry of Justice, Ministry of Internal Affairs and Ministry of Transportation. Such regulations shall be issued within four months as of the effective date of this Law.
(2) The grounds and procedures with respect to the issuance of licenses for Hosting or Access Providers to the persons that would like to operate as an Hosting or Access Provider, regardless of whether that person has a license for the communication through telecommunication or not, shall be regulated by the regulation that shall be issued by Authority. Such regulation shall be issued within the five months period commencing from the effective date of this law.
Amendments On The Relevant Laws
Article 12 – (1) The sentence set forth below-herein is added to Article 2(f) of the Law on Telegraph and Telephone dated 04.02.1924 and numbered 406.
“Legal proceedings may be initiated against the decisions for such administrative fines pursuant to articles of the Administrative Procedural Law dated 06.01.1982 and numbered 2577.
(2) The phrase “relating to the communication made by telecommunication” is attached after the phrase “indicated” in the first sentence of the tenth paragraph of the seventh Supplementary Article of the Law On Duties and Authorities of the Police dated 04.07.1934 and numbered 2559 and the second sentence of the tenth paragraph of the seventh Supplementary Article is amended as “The established Presidency consists of one president and the presidencies of different departments”.
(3) The paragraph below is added to the Article 5 of the Radio Law dated 05.04.1983 and numbered 2813.
“Pursuant to the principles and procedures to be determined by the Board, attorney agreements may be executed with independent attorneys or partnerships of attorneys by in terms of a direct supply determined in Article 22 of the Public Tender Law dated 04.01.2002 and numbered 4734.”
(4) The last sentence of the second paragraph of Article 6 of the Law On State Intelligence Services and National Intelligence Agency dated 01.11.1983 and numbered 2937 is amended as “listenings to be made pursuant to paragraph 6(a)(14) of Article 135 of the Criminal Procedural Law dated 04.12.2004 and numbered 5271 shall also be made via this center”, and the phrase “determination of espionage activities and” is attached after the phrase “But”, which is determined in the fourth paragraph and the phrase “This article”, which is mentioned in the third sentence of the sixth paragraph is amended as “This paragraph”.
Temporary Article 1- (1) Expenses to be made for construction of the building to be used by the Presidency shall be paid from the budget of the Authority without being subject to the provisions of Public Tender Law dated 04.01.2002 and numbered 4734 and Public Tender Agreements Law dated 05.01.2002 and numbered 4735, except for the provisions regarding fines and decisions of banning from tenders
(2) Mass Use Providers who are currently carrying out activities in a commercial manner shall obtain the required permission pursuant to Article 7, within six months as of the effective date of this Law.
(3) An authorization certificate shall be given by the Authority to the persons who are currently acting as Hosting or Access Providers to enable them to operate as Hosting or Access Providers regardless of whether that person has a license granted by the Authority for communications through telecommunication or not.
Effective Date
Article 13- a) Article 3 and Article 8 of this Law comes into effect within six months as of the date of publication of this Law;
b) Remaining Articles of this Law come into effect at the date of publication of this Law.
Execution
Article 14- The Council of Ministers executes the provisions of this Law.
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