Blocking access to the whole of your site is, under Internet Law No. 5651 (Law No. 5651 on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications), the exception and not the rule. The Law regulates it in two articles, in the same sentence pattern, and makes it subject to two conditions. In this article we first give those two provisions verbatim, then show how to find out the basis of the decision and the route of objection written in the text. At the end there is a continuity plan that is not legal at all, but purely operational.

The two provisions in the Law that speak of blocking a whole site

In the full text of Law No. 5651 the expression blocking access to the whole of the internet site appears in only two places: Article 8(17) and Article 8/A(3). Both use the same formula. First Article 8(17):

text
LAW No. 5651, ARTICLE 8, seventeenth paragraph
(verbatim quotation, unofficial translation):

"(17) (Added: 17/10/2019-7188/36) Decisions on blocking of access issued
under the second, fourth and fourteenth paragraphs of this Article shall
be issued by the method of blocking access to the content (in the form
of a URL etc.) in respect of the publication, part or section in which
the infringement occurred. However, where it is technically impossible
to block access to the content relating to the infringement, or where
the infringement cannot be prevented by way of blocking access to the
content concerned, a decision blocking access to the whole of the
internet site may be issued."
text
LAW No. 5651, ARTICLE 8/A, third paragraph
(verbatim quotation, unofficial translation):

"(3) Decisions on blocking of access issued under this Article shall be
issued by the method of blocking access to the content (in the form of a
URL, etc.) in respect of the publication, part or section in which the
infringement occurred. However, where it is technically impossible to
block access to the content relating to the infringement, or where the
infringement cannot be prevented by way of blocking access to the
content concerned, a decision blocking access to the whole of the
internet site may be issued."

Both provisions make a single exception subject to two alternative conditions: (i) that it is technically impossible to block access to the content relating to the infringement, or (ii) that the infringement cannot be prevented by way of URL-based blocking. Unless one of those two conditions is met, the method the text commands is URL-based blocking — we have opened this up in our article on URL-based blocking.

Is there any other whole-site provision in the Law?

In short: no. In the text of the Law the definition of blocking of access (Article 2(1)(o)) lists blocking from the domain name and from the IP address as methods, but it is a definition and not an operative provision — it does not say in what circumstances they are to be applied. The provisions on throttling bandwidth by fifty or ninety per cent are in Additional Article 4 and concern social network providers only; a typical news site is not an addressee of Additional Article 4. And Article 9, which governed blocking on the ground of infringement of personal rights, has been annulled in its entirety.

Legal basisIs blocking the whole site possible?Condition
Art. 8(17)Yes, exceptionallyTechnical impossibility, or the infringement cannot be prevented by URL blocking
Art. 8/A(3)Yes, exceptionallyThe same two conditions
Art. 9/A(4)No exception provision in the textOnly URL-based blocking is provided for
Art. 9The article does not existAnnulled in its entirety by the Constitutional Court, 11/10/2023, E.2020/76, K.2023/172; effective 10/10/2024
Additional Art. 4Bandwidth throttlingIn respect of social network providers only

This table also shows why the annulment of Article 9 lies at the very centre of this subject: as from 10/10/2024, the provision that could be used as a basis for blocking the whole of a news site on an allegation of infringement of personal rights is not to be found in the text of the Law. Nor has the legislature introduced any new regulation in its place.

The first hour: find out the basis of the decision

When the site becomes unreachable, the first thing to do is to work out whether this is a fault or a decision. If it is a decision, it leaves a trace through three channels. Under Article 8(3), a copy of decisions issued by a judge, a court or a public prosecutor is sent for implementation to the Authority. Under Article 6/A(7), access blocking decisions are sent for implementation to the Access Providers Union, and service effected on the Union is deemed to have been effected on the access providers. Under Article 6/A(11), the Union may notify decisions to the electronic mail address identifiable from the pages of your site.

text
SITE UNREACHABLE - FIRST HOUR CHECKLIST

[ ] Technical, or a decision?
    - Check the status of the server, DNS, certificate and hosting provider
    - Try access from different operators and from abroad
    - Ticket/request number opened with the hosting provider: .............

[ ] Has a notification arrived?
    - Has the contact e-mail in the imprint (including the spam folder)
      been searched?
    - Have the registered electronic mail address and service records
      been checked?
    - Has physical service been made at the company's head office?

[ ] Have the particulars of the decision been extracted?
    Date of decision   : ....../....../..........
    Number of decision : ..........................
    Deciding authority : [ ] Criminal judgeship of peace  [ ] Court
                         [ ] Public prosecutor            [ ] President of BTK
    Legal basis        : [ ] Art. 8  [ ] Art. 8/A  [ ] Art. 9/A  [ ] other
    Scope              : [ ] URL  [ ] Domain name  [ ] IP

[ ] Are the reasons for the scope stated in the decision?
    - If the whole site has been blocked, does the decision explain which
      technical condition under Art. 8(17) (or Art. 8/A(3)) was met?
      Note this IN WRITING.

[ ] Time stamps
    Moment access was cut off  : ....../....../..........  ....:....
    Moment notification received: ....../....../..........  ....:....

[ ] Has it been sent to the lawyer? Hour: ....:....

The route of objection: what the text says

Law No. 5651 does not regulate objections in detail within itself; it refers to other statutes. The four provisions written in the text are these:

  • Art. 8(2), last sentence: An objection may be lodged, in accordance with the provisions of the Code of Criminal Procedure No. 5271 of 4/12/2004, against a decision on removal of content and/or blocking of access issued as a protective measure.
  • Art. 8(12): decisions on administrative fines imposed by the Authority may be challenged in accordance with the Administrative Procedure Act No. 2577.
  • Art. 8(13): judicial and court decisions sent to the Authority for implementation may also be objected to by the Authority in accordance with the Code of Criminal Procedure.
  • Art. 8(15): a judicial decision issued at the investigation stage under this Article, and a judicial decision issued under Article 9/A, are given, in places where there is more than one criminal court of peace, by the criminal courts of peace designated by the Council of Judges and Prosecutors.

The main axis of your objection is usually not the content itself but the scope of the decision. The rule-and-exception structure of Article 8(17) and Article 8/A(3) requires that, in a decision covering the whole site, one of the two technical conditions be established. If that reasoning is absent from the decision, or if in the circumstances the content concerned is capable of being closed on its own, that point is placed at the centre of the objection.

The effect of taking the content down

In three places the Law ties removal of the content from publication to the ending of the decision. This is one of the fastest tools available to you while the whole site is blocked:

  • Art. 8(9): where content constituting a catalogue offence is removed from publication, the access blocking decision shall be lifted by the public prosecutor at the investigation stage and by the court at the prosecution stage.
  • Art. 8(7): if a decision of non-prosecution is given at the end of the investigation, the decision becomes automatically void; the prosecutor sends a copy of the decision to the Authority, stating the internet address.
  • Art. 8(8): if an acquittal is given at the prosecution stage, the decision becomes automatically void.
  • Art. 9/A(7): where the content subject to blocking of access has been removed from publication, the judge's decision becomes automatically void.

The balance here is plain: taking the content down is a ground provided for in the Law for the block to be lifted, but removal also has an editorial and archival cost. We have set out the consequences of that choice in detail in the consequences of refusing a request. Note also that under Article 8(2) a decision blocking access may also be issued for a limited period, where this is considered capable of achieving the objective; always check whether the decision is time-limited.

What you should not do

  • Do not delete content wholesale before you have learned the basis of the decision; when you delete it, the subject of your objection and your archive are lost together.
  • Do not plan to circumvent a blocking decision by technical means; Article 6(1)(ç) has separately imposed on the access provider the obligation to close those routes as well.
  • Do not put off complying with a decision on the basis that you are going to object; Article 8(10) and Article 8/A(5) attach a separate sanction to that. Compliance and objection run side by side.
  • Do not assume the periods stop at weekends or on public holidays; there is no such provision in the text of the Law — see the timetable of deadlines.
  • Do not neglect to keep your imprint and contact details up to date during a block; notifications are sent to that address. Review your overall position with the legal compliance checklist.