The position of a news website under Internet Law No. 5651 cannot be explained with a single capacity. The correct answer is this: as regards the content it produces itself it is a content provider, and to the extent that it hosts the content of third parties it is also a hosting provider. Both capacities can be held at the same time, and the liability consequences are entirely different. You are liable for your own reporting without any inquiry into fault; for a reader comment you become liable only if you have been put on notice and fail to take it down. Without drawing this distinction you cannot answer a single incoming notification correctly.
First, an absence worth noting: Law No. 5651 contains no definition of a "news website"
In the full text of Law No. 5651 the words "news site" or "internet news site" do not appear at all. "Periodical", "newspaper", "publisher", "editor" and "responsible editor" are likewise absent from the definitions in Article 2. Article 1 states the Law's purpose as follows: "The purpose and scope of this Law is to regulate the obligations and liabilities of content providers, hosting providers, access providers and mass-use providers, together with the principles and procedures relating to combating, through content, hosting and access providers, certain offences committed on the internet."
The Law is therefore built not around the type of organisation but around the function actually performed. Saying "I am a news site" is not a status for the purposes of Law No. 5651; it is the work you do that places you in a capacity. To determine your capacity you have to look at the definitions in Article 2.
The four definitions in Article 2 — verbatim
- Content provider (Art. 2(1)(f)): "natural or legal persons who produce, modify and provide any kind of information or data offered to users over the internet"
- Hosting provider (Art. 2(1)(m)): "natural or legal persons who provide or operate the systems hosting services and content"
- Access provider (Art. 2(1)(e)): "any natural or legal persons who provide their users with the possibility of access to the internet"
- Social network provider (Art. 2(1)(s), Added: 29/7/2020-7253/Art. 1): "natural or legal persons who, for the purpose of social interaction, enable users to create, view or share content such as text, images, sound or location on the internet"
- Mass-use provider (Art. 2(1)(i)): "the party providing persons with the possibility of using the internet at a particular place and for a particular period"
For a news website the capacities of access provider and mass-use provider are out of the question; the first is the capacity of an internet service provider, the second that of businesses such as internet cafés. That leaves the content provider, the hosting provider and — in certain conditions — the social network provider.
The main proposition: as a rule a news website is a content provider
The definition in Article 2(1)(f) contains three verbs: to produce, to modify and to provide. A news website writes its own story (produces), sets its headline and standfirst, selects and crops its image (modifies), and then offers it to the user (provides). It fits the definition exactly. Taking an agency story and re-headlining it, writing a standfirst and shortening it also falls within that definition — the defence "we did not produce it, we took it" weakens the moment you modify the text.
The hosting provider capacity, by contrast, is not automatic. The test in the definition in Article 2(1)(m) is providing or operating the system that hosts services and content belonging to someone else. Hosting your own story on your own server does not make you a hosting provider; that content is already yours. The hosting provider capacity arises the moment you open an area on the site for content produced by third parties.
Article 4 — liability of the content provider
The verbatim text of the article is as follows (unofficial translation): "ARTICLE 4- (1) The content provider is liable for any content it makes available on the internet. (2) The content provider is not liable for third-party content to which it provides a link. However, where it is manifest from the manner of presentation that it has adopted the linked content and intended the user to reach that content, it is liable under the general provisions. (3) (Added: 6/2/2014-6518/Art. 87) (Annulled by the judgment of the Constitutional Court dated 8/12/2015, E.: 2014/87, K.: 2015/112.)"
Paragraph 1 establishes an absolute liability: any content whatsoever. No fault is required, no requirement of having been put on notice applies, no prior warning is awaited. Stories published on the site, opinion columns, images, video, headlines, standfirsts and captions — all fall within this scope.
The link exception and its two conditions
The first sentence of paragraph 2 favours the operator: as a rule you are not liable for a link you give to someone else's content. The second sentence is the exception to the exception, and it requires two conditions together; moreover both must be "manifest ... from the manner of presentation":
- (i) that the linked content has been adopted,
- (ii) that the user was intended to reach that content.
Where these two are manifest, liability arises not under Law No. 5651 but under the general provisions — that is, the Code of Obligations, the Civil Code or the Turkish Penal Code come into play. In practice, a news site that adopts an allegation from another source and relays it under its own headline without verification defeats this exception. The difference between a relay that keeps its distance ("such and such a site says this") and a headline that asserts the fact ("this happened") is what produces the legal difference here.
Paragraph 3 was added by Law No. 6518 and was annulled by the judgment of the Constitutional Court dated 8/12/2015, E.2014/87, K.2015/112 (effective 28/1/2017). There is today no provision under that paragraph in the text.
Article 5 — obligations of the hosting provider
Article 5(1) verbatim: "The hosting provider is under no obligation to monitor the content it hosts or to investigate whether unlawful activity is involved." This is the most important safeguard the Law gives the hosting provider: there is no general obligation of monitoring or prior vetting.
Article 5(2) (Amended: 6/2/2014-6518/Art. 88): "The hosting provider is obliged to remove from publication unlawful content it hosts where it is put on notice in accordance with Articles 8 and 9 of this Law." Article 5(3): to retain traffic data for a period to be determined by regulation, being not less than one year and not more than two years, and to ensure the accuracy, integrity and confidentiality of that data. Article 5(4): hosting providers may, within the procedures and principles to be determined by regulation, be classified according to the nature of the work they carry out and be differentiated as regards their rights and obligations. Article 5(6): a hosting provider that has not filed a hosting provider notification or does not fulfil its obligations is subject to an administrative fine of from one hundred thousand Turkish liras up to one million Turkish liras imposed by the President — that range was raised from "TRY ten thousand – TRY one hundred thousand" by Article 3 of Law No. 7253 of 29/7/2020.
The two capacities compared
| Test | Content provider (Art. 4) | Hosting provider (Art. 5) |
|---|---|---|
| What it covers | Any content the site itself produces, modifies and offers | Hosted content belonging to someone else (comments, user posts) |
| How liability arises | <b>Of itself.</b> No fault or notice is required (Art. 4(1)) | <b>Dependent on being put on notice.</b> If it fails to remove after notification (Art. 5(2)) |
| Monitoring/prior vetting obligation | Beside the point — the content is already its own | <b>None.</b> The obligation to monitor and investigate is expressly rejected (Art. 5(1)) |
| Liability for links | As a rule none; exists under the general provisions where adoption plus the intention to lead users there is manifest (Art. 4(2)) | Not separately regulated in the article |
| Traffic-data retention | Not provided for in the article | <b>Not less than 1 year, not more than 2 years</b> (Art. 5(3)) |
| Administrative fine | Not provided for in Article 4 | <b>TRY 100,000 - TRY 1,000,000</b>, imposed by the President (Art. 5(6)) |
Which areas give rise to the hosting provider capacity?
Every area on the site where third parties can leave content gives rise, as regards that area, to the hosting provider capacity:
- Reader comments below stories — the most common case.
- A forum or discussion section.
- An upload area for photographs, video or news tip-offs sent in by readers.
- A freelance writer / blog area (where it is published without passing through editorial control).
- Hosted third-party classified or announcement areas.
The definition of "internet news site" in Law No. 5187 sits on a different plane
The definition absent from Law No. 5651 does exist in Press Law No. 5187. Article 2(1)(m) (Added: 13/10/2022-7418/Art. 2), verbatim: "Internet news site: the periodical established and operated for the purpose of presenting, at particular intervals on the internet, written, visual or audio content in the nature of news or comment".
Do not confuse these two planes. Law No. 5187 gives you a status: you count as a periodical, obligations as to the imprint (künye — the masthead panel identifying the publication and those responsible for it) and the responsible editor arise, and you fall within the right of reply and correction regime. Law No. 5651 gives you not a status but one or more capacities according to the work you do. The same organisation may be an internet news site for the purposes of Law No. 5187 and both a content provider and a hosting provider for the purposes of Law No. 5651; these do not exclude one another, nor do they take one another's place.
| Plane | Law | What it confers / imposes |
|---|---|---|
| Status | Law No. 5187, Art. 2(1)(m) | Internet news site = periodical. Imprint (Art. 4), responsible editor (Art. 5), reply and correction regime. |
| Capacity | Law No. 5651, Art. 2(1)(f) | Content provider. Strict liability for its own content (Art. 4(1)). |
| Capacity | Law No. 5651, Art. 2(1)(m) | Hosting provider. Removal upon being put on notice, traffic-data retention (Art. 5). |
To see, provision by provision, which law applies to which type of publication, look at the matrix in our article on which law applies to which type of publication; for the detail of the imprint obligation under Law No. 5187, see our internet news site imprint template.
What changes in practice?
- Classify the notification that arrives. Does the URL complained of belong to your own story, or to a reader comment? Your answer differs accordingly.
- There is no "I was not on notice" defence for your own content. Article 4(1) requires no fault.
- For comments, "I do not monitor" is a legitimate position. Article 5(1) expressly protects it — but the protection ends if you fail to remove after a notification (Art. 5(2)).
- Put in writing the limit of editorial intervention in the comment area. Giving prominence and editing can shift your capacity towards content provider.
- Set your traffic-data retention period by the Law. The Law mandates the range of 1-2 years; shorter periods in older secondary legislation conflict with the Law.
- Watch the language of presentation when you give a link. The exception in Article 4(2) falls away when adoption and the intention to lead users there are manifest.
DETERMINING YOUR CAPACITY — QUICK DECISION TREE
Who produced the content complained of?
|
+-- WE DID (story, column, headline, standfirst, image, video)
| -> CONTENT PROVIDER (Law No. 5651, Art. 4(1))
| -> Strict liability. "I was not on notice" does not work.
| -> Defence: built on the lawfulness of the content.
|
+-- SOMEONE ELSE, but we selected/edited/gave it prominence
| -> Risk of CONTENT PROVIDER status (shifts into Art. 4)
| -> Document the extent of the intervention.
|
+-- SOMEONE ELSE, we merely hosted it (reader comment, UGC)
| -> HOSTING PROVIDER (Law No. 5651, Art. 5)
| -> NO prior vetting obligation (Art. 5(1))
| -> Removal obligation once put on notice (Art. 5(2))
|
+-- SOMEONE ELSE, we merely gave a LINK
-> Rule: NO liability (Art. 4(2), first sentence)
-> Exception: where the manner of presentation makes
(i) adoption and (ii) the intention to lead users
there MANIFEST
-> liability under the general provisions
COMMON TO BOTH CAPACITIES
[ ] Has the hosting provider notification been filed? (Art. 5(6)
penalty)
[ ] Traffic-data retention: not less than 1 year, not more than
2 years (Art. 5(3))
[ ] Is the identifying information reachable from the home page and
up to date? (Art. 3)
[ ] Complaint record: date, time, URL, provision relied on, reply
givenFor all the practical checking steps flowing from the distinction between capacities, see our legal compliance checklist for internet news sites, and for notifications under Article 8 see our article on what a catalogue offence is. Running the comment area on a separate system, with its own logging and removal record, makes it easier for you to prove this distinction; the KEYDAL news publishing software manages comments and news content with separate liability records.