A. Introduction
Publications such as sharing, feedback, and derogatory articles on the internet are currently among the problems of many companies and natural persons. There are certain methods and legal rights that can be applied for the removal of such publications which may be subject to violation of personal rights and/or unfair competition.
The most important legislation on this subject is Law No. 5651 on Regulating Broadcasting in The Internet and Fighting Against Crimes Committed Through Internet Broadcasting (“Law”) and the Regulation on the Rules and Procedures for Broadcasting in The Internet (“Regulation”). In addition to this, the provisions of the Turkish Civil Code and the Turkish Commercial Code should also be considered when determining whether the content is illegal.
B. Definitions
The definitions made in the Law and the Regulation are important in terms of determining the authorized persons, their responsibility and applications. Therefore;
Access Provider: All kinds of natural or legal entities who provide their users internet access,
Content Provider: Natural or legal entities who produce, change and provide all kinds of information or data provided to their users over the internet,
Hosting Provider: Natural or legal entities providing or operating systems hosting services and content,
Association: is the Access Providers Association.
C. Obligations and Liabilities of Access, Content and Hosting Providers under the Law and Regulation
By Law, the Content Provider is responsible for all types of content that it provided on the internet, however the Content Provider shall not be held responsible for the content of a third party with whom it provides links. As for Hosting Providers and Access Providers are not obliged to check the content they are hosting and/or providing access or to investigate whether there is an illegal activity, however, in case of being informed of the illegal content, they are obliged to remove the content or to prevent access to the content.
In this context, Article 9 of the Law states that, natural and legal entities and institutions and organizations claiming that their personal rights have been violated as a result of a content on the internet, have a right to request the removal of the content with a warning by applying to the Hosting Provider or directly applying to the Penal Court of Peace to block access to the content in case of they were not able to reach the Content Provider. The Content Provider and/or Hosting Provider is/are obliged to answer such requests within twenty-four hours. However, before applying to the Content Provider and/or Hosting Provider, fully determining the legal violation and notifying this violation together with its reasons will provide more effective results.
D. Legal Ways to Remove Content and/or to Block Access
The authority of the judge to block access is restricted by a defined and limited number of reasons per law. This article was prepared in consideration of the problems that natural and legal entities may encounter. Meanwhile, the issue of blocking access related to cases specified as a crime by Law has not been examined in detail.
Pursuant to article 9 of the Law, regarding the requests to block access made to the Penal Court of Peace, the judge can block access after concluding that personal rights have been violated and the said decision on blocking access will be notified to the Association, as a result the access will be blocked.
Another method of application for persons whose personal rights are violated is stated in Article 24 of the Turkish Civil Code. Accordingly, it stated that; every attack on personal rights is unlawful, unless, there is consent by those whose personal rights are harmed/violated, or there is private or public benefit or a reason for exercising the authority that is given by the law.
Lastly, regarding legal entities and traders; according to Article 54 et. al of the Turkish Commercial Code, the contents that are broadcasted on the internet can be evaluated in terms of the provision on unfair competition and subsequently access can be blocked. In the relevant clauses in the Turkish Commercial Code, discrediting other party’s goods, business products, costs, operations or commercial affairs by making false, misleading or unnecessarily offensive statements, and making further statements that are wrong or misleading, and other practices are considered within the scope of unfair competition.
Pursuant to the abovementioned provisions of the Turkish Civil Code and Turkish Commercial Code, natural or legal entities who think that their personal rights have been violated, have a right to file a claim for their pecuniary and non-pecuniary damages.
E. Conclusion
In brief, there are many ways to apply in order to remove content and/or to block access to a content that has been published on the internet such as; to have it identified by a notary and/or court, notifying the Content, Hosting and/or Access Provider about the removal of content or requesting the Penal Court of Peace to block access or filing a lawsuit for the violation of personal rights or unfair competition.
Nevertheless, in practice, the existence of a legal reason must be clearly indicated, since the content requested to be removed or blocked from access is widely interpreted by the Turkish Judiciary in the form of freedom of thought, expression, criticism, and press. Determining which right, in which case and can be used against whom, to follow correct order in using legal remedies and to arrange a suitable action plan for every situation are very important. The Turkish legal system provides different legal remedies and rights related to different types of violations. If each event is not evaluated and concluded within itself, it may be the case that individuals can face with loss of right and cannot benefit from legal protection despite being right.
