When national laws and international standards are at odds: human rights responsibilities of social media platforms under Turkey’s new internet law

Orçun Çetinkaya
Çetinkaya, Istanbul
orcun.cetinkaya@cetinkaya.com

Atakan Güngördü
Çetinkaya, Istanbul
atakan.gungordu@cetinkaya.com

* This article is correct as of May 2021.

In July 2020, Turkey amended its Internet Law (Law no. 5651) to include a number of obligations for social media companies with more than 1 million daily users in Turkey, including an obligation to designate a local representative. Local presence for social media companies means strictly abiding by local laws and implementing all content take-down requests of the Turkish authorities. Previously, social media companies did not face legal consequences in Turkey for non-implementation of official requests since these companies had no legal presence in Turkish jurisdiction.

The amendments received significant criticism from human rights organisations and experts.[1] Despite the criticisms and calls to defy the new law (Amended Internet Law), social media companies announced their plans to designate local representatives in Turkey.

Have the social media companies failed to uphold their corporate responsibility to respect human rights by complying with Turkey’s Amended Internet Law? This article will explore the risks that the law poses to freedom of speech in Turkey and possible mitigation strategies for social media companies while placing the new legislation within the broader context of internet regulation in Turkey.

Turkey’s attempt to regulate online content: a grim picture

As the internet has increasingly become the primary avenue for disseminating information and ideas, governments have long sought to regulate online content. While it is legitimate for governments to combat illegal material on the internet, such aims may become a pretext to limit legitimate information or ideas, especially under vague national security and public order rules.

In the past two decades, Turkish authorities have mainly resorted to blocking URLs through administrative measures or judicial orders to regulate online speech. International human rights standards, however, were mostly disregarded in the process. Turkey was found to have violated the right to freedom of expression in multiple cases before the European Court of Human Rights (ECHR) due to unlawful or disproportionate use of content blocking measures.[2] In fact, it would not be an exaggeration to say that applications coming from Turkey gave the ECHR the opportunity to establish its case law on access to the internet.

Following these ECHR judgments, Turkey’s Internet Law has gone through more than ten legislative amendments, though none have reached international standards. Turkish authorities persisted in blocking massive amounts of content with minimal regard for the public’s right to receive and the content owners’ right to impart information and ideas.[3]

Years of implementing access blocking measures on the internet has left Turkey with a grim picture and a massive collateral effect. According to a 2020 report, it is estimated that over 400,000 websites are currently blocked in Turkey.[4] The majority of these blocking measures have been carried out by local internet service providers at the request of administrative authorities, mostly in the absence of any court ruling.

If blocking websites is one half of the picture, the other half is the official requests to remove content on social media platforms. Turkey is the world leader in requesting content removals on Twitter[5] and Reddit.[6] Failure to comply with Turkey’s official requests has resulted in the harshest consequences for social media companies in the past decade – entire platforms, including Twitter[7], YouTube[8] and even Wikipedia,[9] have been blocked for months or even years in Turkey.

While the Turkish government holds this ‘kill switch’ for social media platforms at its disposal, blocking access to these platforms with millions of Turkish users comes at the cost of being labelled as a censorship state and strongly worded judicial rulings by the ECHR. Considering that officials of Turkey’s ruling party, ministers, and the Turkish President himself have become avid users of social media platforms like Twitter and Instagram, blocking access is no longer a sustainable option.

The question for the Turkish authorities has then come down to effectively regulating content on social media platforms while minimising reputational and legal costs. Enter the new amendments to the Internet Law.

Turkey’s new Internet Law: local rules apply to local presence

In July 2020, amendments to Turkey’s Internet Law were adopted, which, among others, included the obligation for social media platforms to designate a representative in Turkey. The role of the representative is to be the direct respondent to Turkey’s official requests and implement them. In this way, Turkish authorities could ensure compliance with official requests and hold platforms legally accountable in Turkey without the necessity of applying to the platforms’ headquarters that operate under other national jurisdictions.

The law set forth significant sanctions for the failure to designate representatives. The sanctions were structured in a system of five tiers, with the first two being administrative fines of TRY10m (approx€1m) and TRY30m (approx €3m).

Initially, only VKontakte, a Russian-based social media company, complied with the Amended Internet Law, while Facebook, Twitter, YouTube, and TikTok either defied the obligations or stayed silent on the issue.[10] Subsequently, they were subjected to administrative fines totalling TRY 40m ((approx. €4m).[11]

Although these fines may not be significant for these giant tech companies, the threat of the remaining three tiers of sanctions, including an advertising ban and bandwidth throttling of up to 90%, pushed them to reassess their compliance with the new legislation. After months of defiance or silence, all social media platforms eventually succumbed to the pressure from Turkish authorities and announced that they would designate local representatives.[12] In complying with the local requirements, the tech giants may have avoided significant cuts in their revenues, but abrogated their responsibility to uphold the right to free speech.

Social media companies’ responsibility to uphold freedom of speech

The UN Guiding Principles on Business and Human Rights (UNGPs), an authoritative soft-law instrument that the UN Human Rights Council unanimously endorsed in 2011, obligates businesses to respect human rights. While all internationally recognised human rights fall under the scope of the UNGPs, the right to free speech is especially relevant in the case of social media companies. The right to free speech is a right that is fundamental to the functioning of a democratic society[13] and is guaranteed under, inter alia, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights.

Social media companies’ responsibility to respect their users’ freedom of speech exists independently of the Turkish state’s ability or willingness to protect human rights. Therefore, under the UNGPs, a business’s responsibility to uphold the right to free speech overrides any requirement to comply with national laws. When there is a conflict with national laws, social media companies must uphold international human rights.

With this dynamic in mind, social media companies were left between a rock and a hard place when Turkey introduced its new social media law. On the one hand, the tech giants could defy the Amended Internet Law and face the risk of losing significant revenue and the potential of having to exit from the Turkish market, which could dramatically restrict Turkish social media users’ access to news and information. On the other hand, they could comply with the law and potentially jeopardise online free speech in Turkey.

For reasons not disclosed to the public, all social media companies went with the latter option. However, the saga is not over. Through effectively challenging official requests, social media companies may mitigate the adverse impact on freedom of speech.

Upholding the right to free speech under Turkey’s new social media law by challenging official requests

When announcing their decision to designate local representatives as per Law No 5651, all social media companies emphasised one point: while complying with the national law, they maintained a commitment to freedom of speech.[14] This is not an easy feat, as Law No 5651 is in conflict with international human rights standards. The real test for these companies, therefore, will be in their handling of official requests in Turkey in the long term.

Demonstrating a strong commitment to the UNGPs is more important than ever, including challenging arbitrary official requests in the courts. If done strategically, social media companies may be able to both comply with national laws and mitigate the risks to freedom of speech.

As per Law No 5651, criminal peace judgeships (sulh ceza hakimlikleri) are mandated to rule on online content takedowns, and their decisions are appealed before other criminal peace judgeships. Appealed decisions become final without a review by a higher court, creating a horizontal review system with a poor human rights record.[15] ​​​​​​​

Given the statistics which reveal that criminal peace judgeships almost never rule in favour of free speech,[16] the social media companies have the Turkish Constitutional Court as the last domestic remedy. In the past decade, the Constitutional Court has ordered against access blocking of Twitter,[17] YouTube[18], and Wikipedia[19]. For social media companies, one way to abide by national laws and mitigate risks to freedom of speech at the same time could be not to implement arbitrary takedown requests until the Constitutional Court renders a judgment on the case.

Such an approach does not guarantee willingness on the part of Turkish authorities to wait for Constitutional Court judgments before implementing additional sanctions, but it may open an avenue for the social media companies to justify their inaction on official requests by citing ongoing legal proceedings.

In this context, companies could pursue two litigation strategies. First, they could take all arbitrary official requests to the Constitutional Court. Though this may allow social media companies to wait until Constitutional Court judgments on all arbitrary requests, it would, in turn, require allocating additional resources on legal representation and fees, considering the number of Turkey’s official requests reach up to tens of thousands every year.

Second, companies could strategically select cases that are more likely to succeed and only take those to the Constitutional Court. While this second approach of strategic litigation may lead to short-term human rights losses in cases that were not challenged, it has a greater potential of leading to favourable judgments by the Constitutional Court and subsequently the ECHR in the long run.

Overall, a litigation strategy should be part of the broad human rights mitigation plans of social media companies. Although it may be challenging, respecting human rights under the Amended Internet Law requires social media companies to have the UNGPs as their compass, in assessing the human rights impacts of content takedowns

Conclusion

Designating local representatives is only the first step towards a period of human rights challenges for social media companies in Turkey. How these tech giants handle Turkish authorities' content takedown requests while mitigating risks to freedom of speech will be the real challenge for the long term.

This article highlights domestic litigation strategies for companies potentially facing arbitrary official requests. Though it may lead to short-term human rights losses, companies should pursue a select number of cases that are likely to succeed and take them to the Turkish Constitutional Court and ultimately to the ECHR.

Social media companies should put their commitment to respect human rights before harmony with the Turkish government’s policies to regulate the internet.  This is a long and winding road that could lead to long-term human rights wins.