Obligations Of Hosting Sevices Provider Under The Law Number 5651
1- IN GENERAL
As a result of the increasing use of the Internet, in order to find solutions to problems such as the dissemination of illegal content on the Internet, what the responsibility of those who publish this content will be, how to remove this content, the Law No. 5651 on Regulating the Broadcasts Made on the Internet and Combating the Crimes Committed Through These Broadcasts (“Law”) entered into force in 2007.
In the Law, responsibilities, and liabilities regarding the content on the internet are determined separately in terms of “content provider” and “hosting service provider”.
Content provider refers to natural or legal persons who provide all kinds of data provided to users over the internet, while hosting service provider refers to natural or legal persons who provide or operate systems hosting services and content. The responsibilities of the content provider and hosting service provider are different under the Law. For example, while online marketplaces, which are a system that hosts content, are a hosting provider, seller X that creates content on that site can be a content provider.
2- RESPONSIBILITIES OF THE HOSTING SERVICE PROVIDER
Social media sites such as Facebook, Twitter and Instagram, where users can create content on the relevant website, can be given as examples of hosting service providers, as well as electronic commerce sites operating as an online marketplace with hosting service provider status serving within its own structure, where multiple vendors can offer their products for sale.
The responsibilities of the hosting service provider are determined within the framework of the Law and the Regulation on the Procedures and Principles Regarding the Regulation of Broadcasts on the Internet (“Regulation”).
In accordance with Article 5 of Law, hosting service providers are not obliged to check the content they host or to investigate whether there is an illegal activity. However, hosting service providers are obliged to remove this content if they are notified of illegal content by the judicial authorities, Information Technologies and Communication Authority (“ITCA”) or persons whose rights have been violated.
Hosting service providers also have an obligation to store traffic information. They are obliged to keep the information regarding the services they provide for at least one year and for no more than two years, and to ensure the accuracy, confidentiality, and integrity of this information.
Hosting providers are obliged to notify ITCA regarding their activities. The list of hosting providers who made the notification is also published on the website of the ITCA. In addition, the Law includes the provision that an administrative fine from one hundred thousand Turkish liras to one million Turkish liras will be imposed if the hosting provider is not notified.
In the Law, hosting providers are obliged to present their introductory information in a way that users can access directly from the home page and under the communication heading. What this information will be is determined in accordance with the Regulation. Accordingly, if the hosting provider is a real person, the name and surname, if it is a legal person, the title and responsible persons, tax identification number or trade registry number, place of residence or the place where the center is located should be on the home page. Hosting providers should also provide their electronic communication address and telephone number on their home page, as well as information on the competent supervisory authority if the service provided is within the framework of an activity subject to the permission or control of an authority.
If the obligation to inform is not fulfilled, it is possible to impose an administrative fine from two thousand Turkish liras to fifty thousand Turkish liras to the hosting provider in accordance with the relevant article of the Law.
3- CONTENT RESEARCH RESPONSIBILITY OF THE HOSTING SERVICE PROVIDER WITHIN THE FRAMEWORK OF CASE-LAW
The Court of Cassation has stated in its decisions that the hosting service providers are not obliged to search the content, that they shall be held responsible only if they do not remove the content in the cases of articles 8 and 9 of the relevant Law, and that the content cannot be attributed to the hosting service providers. As a matter of fact, in the decision of the 11th Civil Chamber of the Court of Cassation, numbered 2014/198669 and dated 16.12.2014, “The content provided by the defendants, who are hosting service providers on the website, pursuant to Articles 4, 5 and 9 of the Law, is not responsible for checking and investigating whether there is an illegal activity”.
It is seen that the evaluation is made in this way in the decisions given by the courts of first instance. For example, in a first-instance court decision in 2018; “(…) as it can be understood from the relevant provisions, it is stated that the hosting provider does not have the obligation to control the illegality of the content it hosts, but has the obligation to remove such content that has been notified to it (…)”
In another case demanding non-pecuniary damages due to unfair competition, the Court of Cassation emphasized that the hosting service provider has no obligation to investigate the content. Hosting service provider may be in the capacity of participating in the tortious act and its responsibility is only possible if the unlawful publication is notified to hosting service provider or it is proved that hosting service provider is in a position to know about it. This rule, which is known as “warn and remove” in the application of the Court of Cassation, is explained in the form of making the hosting service provider remove the illegal content with a warning, otherwise imposing liability.
4-CONCLUSION
The obligations of the hosting service providers are determined in accordance with the Law and the Regulation. These obligations can be summarized as the obligation to remove the illegal content reported to it, the obligation to keep traffic information, the obligation to notify about its activity and the obligation to inform. However, the hosting provider is not obliged to investigate illegal content in accordance with the Law. In the event that the illegal content is requested to be removed, if the hosting provider does not remove the content, it can be considered that the hosting provider participates in the tortious act and is responsible.
REFERENCES:
https://www.lexpera.com.tr/ictihat/yargitay/4-ceza-dairesi-e-2020-19282-k-2020-21719-t-23-12-2020
https://www.lexpera.com.tr/ictihat/yargitay/4-hukuk-dairesi-e-2019-3301-k-2020-435-t-10-2-2020
https://www.lexpera.com.tr/ictihat/yargitay/11-hukuk-dairesi-e-2019-5303-k-2020-629-t-21-1-2020
https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=11746&MevzuatTur=7&MevzuatTertip=5
https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5651.pdf
