telecommunication2

A brief guide to Turkish Telecommunication and Internet Law

Turkey offers today a prosperous market for communication and information Technologies. The legal reforms introduced in the sector in 2004 opened the door to a dynamic and liberalized sector that sought to keep up with the fast developing technological changes. Since that moment, Turkey has experienced an unstoppable rise of IT users. The last available data shows a growth of 18% in the total number of internet users in Turkey each year. These circumstances, as well as the privileged geographical situation of the country,  have led many international market leaders, such as Microsoft or Hewlett-Packard, to choose Istanbul as the centre of their operations in the region. However, many concerns have been risen recently regarding the legal reforms carried out in February 2014. In order to understand the issue at stake, some keys concerning the Turkish telecommunication legal framework will be provided.

1. Legal sources

Law no. 4054 on the Protection of Competition (1994)

Law no. 5651 on the Regulation of Publication on the Internet and the Suppression of Crimes Committed by means of such Publication (2007)

Law no. 5809 on Electronic Communication (2008)

Regulation on Authorization Regarding the Electronic Communications Sector (2009)

2. A market with two main actors

A. Ministry of Transport, Maritime Affairs and Communications:The Electronic Communication Law assigns to the Ministry the policy making authority regarding electronic communication services, who has to encourage the development of a free competition market and lead Turkey into an information society.

B. Information and Communication Technologies Authority (ICTA): Originally created in 2000, the Information and Communication Technologies Authority has been redefined as the central actor in the Turkish telecommunication authority under the new Electronic Communication Law and its secondary legislation. It is an independent administrative authority and it performs the regulatory and the sanction functions in the light of the policies defined by the Ministry. By such, its decisions may be appealed before the State Council, according to the Turkish Constitution. These are some of its main duties:

  • Creating and protecting competition in the sector: The ICTA seeks to incentivise competition in the Turkish telecommunication industry and to prevent those practices capable of hindering it. It keeps therefore a tight cooperation with the Competition Authority, the only institution capable of developing and implementing Competition Law in Turkey. 
  • Granting Authorizations: Following the Electronic Communication Law and the Regulation on Authorization Regarding the Electronic Communications Sector, all enterprises willing to provide telecommunication services in Turkey require an authorization delivered by the ICTA. A waiver of authorization is however admitted in the case of private or public legal entities that employ these services for the satisfaction of their own needs without any kind of commercial intentions.

Authorizations from the ICTA can be obtained in two different ways: One the one hand, those enterprises that do not require an allocation of resources to carry out their activities may obtain this authorization upon a simple notification to the organism. On the other hand, if this allocation of scarce resources is a case, a Right of Use needs to be obtained from the ICTA. If the number of authorizations has not been exceeded, this right should be granted within 30 days upon notification, for a maximum period of use of 25 years. The ICTA charges an authorization fee on telecommunication operators equal to the 0,35% of their net sales. The transmission of authorization between operators is allowed by Law, but it needs the approval of the ICTA.

  • Approving  the tariffs of the operators: Even thought the Electronic Communication Law allows operators to determine freely the tariffs to be imposed on their clients in return for the services, they need to conform to the requirements of fairness, transparency and non-discrimination and should be approved by the ICTA.
  • Imposing sanctions: The latest reforms carried out in February 2014 have reinforced the sanctioning and scrutiny competences of the ICTA in the Turkish telecommunication market. The monetary fines that may be imposed by the organism for not respecting the regulations have been doubled or tripled, and may even entail the cancellation of authorizations or imprisonment penalties, depending on the gravity.

3. How do the new amendments in the Internet Sector affect providers of services?

In February 2014, new amendments to the Regulation of Publication on the Internet and the Suppression of Crimes Committed by means of such Publication (Law no. 5651) have been passed in Turkey. The new legal framework reinforces the position of the ICTA in the market.

  • Take-down of illegal content: The reform allows the ICTA to dictate to internet service providers the take-down of content considered as illegal without an immediate court order. This may happen ex officio or upon the claim of rights infringement by real or legal persons. Under the new law, Internet providers are compelled to follow the take-down instructions within 4 hours. Despite a court order has to be sought in the lapse of 24 hours, the content remains inaccessible until a formal decision has been delivered.
  • Creation of an Access Providers Union: In order to comply with the take-down of contents, all internet service operators authorized in Turkey under the Electronic Communication Law need to become a member of the Union. This allows a quick implementation of orders.
  • Record of personal information: Internet service operators have the obligation to record traffic information and personal use data during two years and provide it to the adequate authorities upon request. This information is only accessible after the delivery of a judicial authorization.

All in all, it can be observed the legal tension that exists in the Turkish communication and information technologies sector. The will to liberalise the communication market and incentivise competition has been conducted at the same time as reforms that impose a tight control over service providers. At Yılmaz & Ciner we take into account the latest reforms in the sector to provide the best advice possible to companies willing to carry out their activities in Turkey.