Legal liability of Content providers

I. DEFINITION OF CONTENT PROVIDER 1. Concept of Content Provider According to Law No. 5651, content providers are defined as: "Individuals or legal entities who create, modify, or provide any kind of information or data offered to users via the internet…" The law necessitates that the provision to users of all types of data must occur in the online environment. Therefore, it is essential to define the concept of the internet environment within this context. The term "internet environment" is defined as: "The environment created on the internet that is outside of personal or corporate computer systems and is publicly accessible… As understood from this definition, data provision must occur via publicly accessible platforms on the internet, excluding activities conducted in private areas or on personal/corporate computer systems. Based on these definitions and explanations, primary examples of content providers include individuals who write or share content on social media, interact with third parties in different ways, or engage with others through online gaming platforms. The critical point is that information must be generated, modified, or provided by an individual, and this activity must take place via publicly accessible platforms outside private domains. While the predominant approach aligns with this understanding, there are also perspectives suggesting that social media users should not be categorized as content providers 1 . It is noted that the judiciaryis view tends to align with the dominant perspective 2 . 2. Distinguishing Content Providers An internet service provider is a general term for individuals or legal entities that provide internet access to users 3 . Internet service providers are further categorized into access providers and hosting providers, as defined by Law No. 5651. Access providers enable users to access the internet, while hosting providers are responsible for hosting and managing systems that provide services and content. To illustrate with an example: a platform like YouTube, which hosts and manages content, acts as a hosting provider. Simultaneously, YouTube's creation of its own proprietary content on its platform also qualifies it as a content provider. In practice, it is possible for a single entity to combine roles such as content provider, hosting provider, and access provider within the internet environment. II. OBLIGATIONS AND LEGAL RESPONSIBILITIES OF CONTENT PROVIDERS 1. Responsibilities of Content Providers Obligation to comply with fundamental principles according to the regulation 4 on the arrangement of publications made in the internet environment, internet publications must adhere to the following principles 5 : a) Respect for human dignity and fundamental rights and freedoms, b)Avoidance of content that could harm the physical, mental, or moral development of minors, c)Content should not harm matters ensuring family peace and welfare, d) Content should not encourage individuals towards harmful habits such as drug addiction, prostitution, obscenity, or gambling. While the regulation outlines these fundamental publication principles, it does not specify sanctions for non-compliance. However, the absence of sanctions does not imply that content providers have the right to disregard these regulations in the online environment. It is generally accepted that all users in the online environment must act in accordance with relevant legislation, thereby obligating content providers to provide content that complies with these fundamental publication principles. Obligation to provide information under law no. 5651, content, hosting, and access providers are required to maintain descriptive information in a manner accessible to users on their respective internet platforms, in accordance with regulations and procedures specified. This obligation applies not only to social media but also to internet news sites and other internet content, hosting, and access providers. Given that many content providers are ordinary internet users, this obligation places a significant responsibility on them to maintain current and publicly accessible descriptive data, which could pose risks concerning the protection of personal data. Therefore, it is reasonable to conclude that this obligation may primarily apply to commercial and economic content providers, rather than ordinary internet users 6 . Content providers are obliged to comply with specific decisions made by the association. This obligation is primarily regulated under Articles 8/A and 9 of the aforementioned law. Article 9 paragraph 8 states: The decision to remove content and/or block access, sent by the Association to relevant content and hosting providers and access providers, must be implemented immediately, within a maximum of four hours. Failure to comply with the above-mentioned obligations may result in administrative fines as stipulated under Article 9, paragraph 11 of Law No. 5651. Additionally, individuals claiming that their personal rights have been violated due to content published on the internet may request the relevant content provider to remove such content. However, no specific sanction is prescribed if the content provider fails to comply with such requests. 2. Legal Liability of Content Providers The liability of content providers for the content they offer on the internet is regulated under Article 4 of Law No. 5651. According to this provision: (1) Content providers are responsible for any content they offer on the internet. (2) A content provider is not responsible for content belonging to others to which they provide a link. However, if it is clear from the presentation method that they endorse and aim for users to access the content they provide a link to, they shall be held liable under general provisions. While the legislator establishes a liability regime for content providers, it does not specify the sanctions or degree of liability that would arise in the event of such liability. Therefore, after determining the liability of content providers, actions such as tort, unfair competition, contractual liability, etc., should be determined in accordance with the general provisions of the Turkish Code of Obligations. In practice, the main forms of liability encountered by content providers include: ● Liability arising from content containing elements such as defamation, threats, or libel, violating individuals honor and dignity, ● Liability arising from the unlawful acquisition, recording, or sharing of individualsi; special personal data, violating the right to privacy, ● Liability arising from the violation of personal rights through the unauthorized opening of social media accounts or the use of fake accounts, ● Liability arising from the creation of content of a commercial advertising nature, entailing responsibility under the Law on the Protection of Consumers as a platform operator. Responsibility of content providers for linking to content under the second paragraph of Article 9 of Law No. 5651, an exceptional area is defined where liability is waived for content linked to by the provider. However, content providers cannot evade liability if they openly endorse and aim for users to access the content they link to, as explicitly stated in the first paragraph of the same article. To illustrate the responsibility regime concerning linking, consider the example of a retweet on Twitter: if a third party makes a defamatory tweet and another person retweets it, the liability of the retweeter depends on whether it is clear that they endorsed the content in question and intended for users to access it. According to a viewpoint 7 , determining the purpose of the retweet is crucial. If the retweet merely archives the relevant message or presents it to others for information purposes, liability should not arise. However, if the retweet indicates endorsement of the tweet, liability may ensue. The Supreme Court has addressed this matter in its decision of 16.01.2019, stating that defamatory acts can be committed through retweeting. In this case, the Court accepted that the act of retweeting a tweet containing defamation can constitute a defamation offense 8 . Lastly, there is the liability typecontractual liability of content providers. Like all content platforms on the internet, specific terms of use apply to these platforms. Therefore, in practice, content providers create their content on these platforms by accepting terms of use related to privacy, platform policies, and data principles, which may potentially incur liability. III. CONCLUSION As defined in Law No. 5651, a content provider is an individual or legal entity that provides any information or data on the internet. Content providers, by definition, are distinct from other internet users and are subject to different obligations and liability regimes. Accordingly, content providers have legal responsibilities arising from any content they provide on the internet. While Law No. 5651 outlines the general framework of legal liability for content providers, it does not specify the sanctions or consequences users may face due to this liability status. In other words, once the liability of content providers for the content they offer on the internet is established, actions such as tort, unfair competition, contractual liability, etc., should be implemented according to general legal provisions. The debates regarding legal liability regime predominantly focus on the responsibility for linked content, as regulated under Article 4, paragraph 2 of Law No. 5651. This provision establishes criteria for liability, depending on whether the presentation method of the linked content indicates explicit endorsement. Since the law does not clearly define these criteria, various discussions exist in legal doctrine. In practice, the Supreme Court accepts that liability for linking can arise through actions like retweeting.