Subject 17- Telecommunication Law

Subject 17 – Telecommunication Law

• Regulation of the Electronic Communications Sector

The qualifications, permissions, and authorizations of organizations providing electronic communication and electronic communication services are regulated in the Electronic Communications Law No. 5809.

According to the law, electronic communication refers to “the transmission, sending, and receiving of any kind of signal, symbol, sound, image, and data that can be converted into electrical signals through transmission systems such as cables, wireless, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical, and other means.“

According to Article 1 of the Law, the purpose of this Law is to establish effective competition in the electronic communications sector through regulation and supervision, protect consumer rights, promote the widespread availability of services nationwide, ensure the efficient and effective use of resources, encourage technological development and new investments in communication infrastructure, networks, and services, and determine the principles and procedures related to these matters.

• Definitions 

Ministry: Ministry of Transport and Infrastructure (Turkey)

Electronic communication: The transmission, sending, and receiving of any kind of signal, symbol, sound, image, and data that can be converted into electrical signals through transmission systems such as cables, wireless, optical, electrical, magnetic, electromagnetic, electrochemical, electromechanical, and other means,

Electronic communication infrastructure: All network elements, relevant facilities, and their integral components, including the switching equipment, hardware, software, terminals, and lines, where electronic communication is performed through or over them,

Electronic communication infrastructure operation: Establishing, having it established, leasing, or in any way providing the necessary electronic communication facilities related to the relevant infrastructure for use by other operators or by requesting natural or legal persons,

Electronic communication service: Offering some or all of the activities falling within the definition of electronic communication as a service,

Electronic communication network: Any transmission system network that includes switching equipment and lines, among others, that constitute the connection between one or more points to ensure electronic communication,

Electronic communication sector: The sector related to providing electronic communication services, providing electronic communication networks, and carrying out production, import, sales, and maintenance services for electronic communication devices and systems,

Provision of an electronic communication network: Establishment, operation, provision, and control of an electronic communication network,

Electronic identity information: The unique identity description assigned to electronic communication devices,

Operator: The company that provides electronic communication services, operates and provides the infrastructure within the framework of authorization,

Board: Information Technologies and Communication Board,

Agency: Information Technologies and Communication Agency.

MCKS (CEIR): Central Mobile Device Identity Registration Database System,

MCKT (EIR): Mobile Device Identity Registration Database can be established. The Authority is authorized to determine the procedures and principles related to this matter.

• Principles Applicable to the Provision of Electronic Communication Services

In accordance with Article 4 of the law, permitting the establishment and operation of all types of electronic communication devices, systems, and networks, allocating necessary resources such as frequencies, numbers, satellite positions, and similar, as well as regulating them, fall under the authority and responsibility of the State. In the provision of electronic communication services and the regulations to be made in this regard, the following principles are taken into consideration by the relevant authorities:

1. a) Ensuring and preserving a free and competitive environment.
2. b) Protecting consumer rights and interests.
3. c) Adhering to development plans, top policy documents, and strategies determined by the Ministry.

ç) Promoting practices that enable everyone to benefit from electronic communication networks and services at a reasonable fee.

1. d) Ensuring no discrimination is made and services are accessible under equal conditions for subscribers, users, and operators under equal terms, unless objective reasons necessitate otherwise, or in cases of providing clear and defined facilities to needy segments of society.
2. e) Adhering to qualitative and quantitative continuity, regularity, reliability, efficiency, clarity, transparency, and the efficient use of resources, unless otherwise stated in this Law or objective reasons necessitate otherwise.
3. f) Compliance of electronic communication systems with international norms.
4. g) Encouraging the implementation of technological innovations and research and development activities and investments.

ğ) Promoting the improvement of service quality.

1. h) Giving priority to national security, public order requirements, and emergency needs.

ı) Allowing operators to freely determine the fees they receive for providing electronic communication services, including access fees, connection fees, and line rentals, unless otherwise explicitly defined in this Law, relevant legislation, and authorizations, except in cases necessitating objective reasons.

1. i) Considering minimum international norms in terms of human health, life and property safety, environmental protection, and consumer protection when establishing, using, and operating electronic communication devices and systems.
2. j) Ensuring neutrality in the provision of electronic communication services and regulations in this regard.
3. k) Taking into account the special needs of disabled, elderly, and other socially vulnerable groups, including the use of technological innovations.
4. l) Safeguarding information security and communication privacy.

• Authorization of Electronic Communication Services

The authorization of electronic communication services is regulated in Article 8 of the law. According to the article, “Taking into consideration the Ministry’s strategy and policies, electronic communication services can be provided and/or electronic communication networks or infrastructure can be established and operated following the authorization granted by the Authority.”

According to the same article, it is essential that the required electronic communication service and/or network or infrastructure is primarily provided by operators authorized by the Authority.

However, exceptions to the authorization rule by the Authority have been established in the following cases:

1. a) In cases where an individual or legal entity uses electronic communication services exclusively for personal or corporate needs within their own immovable properties, without extending beyond the boundaries of each immovable property, without providing any electronic communication services to third parties, without pursuing any commercial purposes, and without making them available for public use,
2. b) In cases where public institutions and organizations establish electronic communication services and/or networks or infrastructure exclusively for the services they provide under special laws.

• Immutability and Continuity of Communication Services

According to Article 34 of the law:

(1) Rights of use and enjoyment, such as frequencies, numbers, and line usage allocated to subscribers or users related to electronic communication services, as well as internet domain names, and operators’ authorizations, cannot be subject to seizure in any way.

(2) Communications related to public safety and order, whose scope has been determined by the Authority, cannot be interrupted for any reason.

(3) Unless a court order or a decision taken by the Authority, the Ministry, or other authorized authorities in accordance with the relevant legislation, no interventions that would disrupt electronic communication can be made to the electronic communication infrastructure.

• Processing of Personal Data and Protection of Privacy

According to Article 51 of the Law:

(1) Personal data processing must adhere to the principles of legality and fairness, accuracy, relevance to specific, explicit, and legitimate purposes, being limited to the purposes for which they are processed, and being stored for a period necessary for the purposes.

(2) Privacy of electronic communications and related traffic data is a fundamental principle. Except for situations specified by the relevant legislation and judicial decisions, intercepting, recording, storing, cutting off, and tracking communications without the consent of all parties to the communication is prohibited.

(3) Electronic communications networks may only be used by operators to store information on subscribers/users’ terminal equipment or to access stored information if they have been explicitly and comprehensively informed about the processing of their data and their clear consent has been obtained.

(4) Operators shall take appropriate technical and administrative measures to ensure the security of personal data of subscribers/users and the services they provide.

(5) Personal data may be processed to fulfill the obligations imposed on operators by the Authority under Article 49 of this Law or to achieve the public interest.

(6) Without prejudice to the relevant legislation on the transfer of personal data abroad, traffic and location data may only be transferred abroad with the explicit consent of the data subjects.

(7) Traffic data shall only be processed, limited to authorized personnel designated by the operator, for the purposes of traffic management, interconnection, billing, detecting irregularities/fraud, resolving disputes, especially those related to consumer complaints, and stored with the assurance of confidentiality and integrity until the dispute resolution process is completed. Traffic data and location data needed for the provision of value-added electronic communications services or marketing of electronic communications services may be processed for the purposes mentioned, either after anonymization or with the explicit consent of the data subjects, and only within the scope and duration required for the relevant activities.

(8) Operators provide subscribers/users with the possibility to reject the processing of location data. Except for situations specified by the relevant legislation and judicial decisions, location data and the identity information of relevant individuals may be processed by the operator without the need for the explicit consent of subscribers/users, but limited to authorized personnel designated by the operator, only in cases of emergency calls and situations defined as disasters and emergencies in the Disaster and Emergency Management Authority’s Organization and Duties Law numbered 5902, and only within the scope of these situations.

(9) Personal data, traffic, and location data may be processed within the framework of investigating subscriber/user complaints and audit activities, but limited to the mentioned activities.

(10) In relation to the services provided within the scope of this Law:

1. a) Personal data that are subject to investigation, examination, audit, or disputes shall be stored until the relevant process is completed.
2. b) Transaction records relating to access to personal data and associated systems shall be kept for two years.
3. c) Records indicating subscribers’/users’ consents to the processing of personal data shall be kept for at least the duration of the subscription. The data retention periods, which shall be no less than one year and no more than two years from the date of communication, shall be determined by regulation.

(11) Operators may share or process invoice amounts and payment information for electronic communication services with other operators for the purpose of managing collection-related risks and preventing malicious use.

(12) Operators are responsible for ensuring the privacy, security, and purposeful use of personal data within the scope of this Law.

(13) Procedures and principles related to the implementation of this article shall be determined by the Authority.

• Devices with Electronic Identity Information

According to the Regulation on the Registration of Devices with Electronic Identity Information, electronic identity information is defined as “a unique identifier assigned to electronic communication devices.” For mobile devices, this number is the IMEI number. 

An electronic identity information-altered device refers to a device in which “all or part of the electronic identity information has been altered.”

According to Article 55 of the Law:

(1) Without the permission of the Authority, special information carrying subscriber identity and contact information or electronic identity information used for device diagnostics cannot be recreated, modified, copied for reproduction, or distributed for any purpose.

(2) Devices, cards, tools, or equipment with altered electronic identity information, as well as any software, tools, or equipment aimed at making changes, cannot be imported, produced, distributed, or advertised, possessed, or intermediated.

(3) Software and all kinds of tools or equipment that can be used to alter electronic identity information on devices, cards, tools, or equipment shall be seized in accordance with the provisions of Article 127 of the Code of Criminal Procedure numbered 5271, dated 4/12/2004.

• Security of Subscriber and Device Identity Information

The security of subscriber and device identity information is regulated as follows in Article 56 of the Law:

(1) Special information containing subscriber identity and contact information and all kinds of software, cards, tools, or devices that carry electronic identity information of devices cannot be copied, stored, distributed, or used without authorization or permission to benefit themselves or others.

(2) False documents and information regarding subscription information cannot be provided to the operator or its representatives during the subscription registration process.

(3) Subscription registration cannot be made by the operator or its representatives without obtaining a sample of the identity documents required for subscription establishment.

(4) Subscription establishment, operation, or registration of devices with electronic identity information cannot be made or caused by the operator or its representatives without the knowledge and consent of the individual, and false documents cannot be prepared, documents cannot be altered, and they cannot be used.

(5) Subscriptions that have been established using false documents cannot be used.

(6) The procedures and principles regarding subscription establishment are determined by the Authority through regulations.

• Technical Compliance

In order to distinguish between legal and illegal devices, it is necessary to register the devices. For this purpose, the CEIR (Central Equipment Identity Register) has been developed by the Information and Communication Technologies Authority. Businesses are required to make their “EIR (Equipment Identity Register)” compatible with CEIR.

According to Article 57 of the law:

(1) Operators cannot provide electronic communication services to lost, stolen, or unauthorized devices. However, genuine devices whose electronic identity information has been copied while they were registered in the CEIR can only be used with matched subscriber numbers.

(2) Operators are obliged to make their EIR systems compatible with the CEIR at the Authority to prevent unauthorized devices described in the above paragraph from connecting to communication networks, ensure the security and reliability of the technical infrastructure and system related to this, and operate it without interruption.

• Criminal Penalties

According to Article 63 of the Law:

(1) Individuals or entities that provide electronic communication services or establish and operate facilities without notifying the Authority, as per Article 9 of this Law, shall be subject to a judicial fine ranging from one thousand (1,000) days to ten thousand (10,000) days.

(2) Individuals or entities that provide electronic communication services without the right to use in violation of Article 9 of this Law, those who establish or operate facilities, shall be sentenced to imprisonment for up to six (6) months and a judicial fine ranging from five thousand (5,000) days to fifteen thousand (15,000) days.

(3) In cases where the personnel of the operators authorized to provide electronic communication services commit offenses against personal privacy and the confidential sphere of life as defined in the Ninth Section of the Second Part of the Turkish Penal Code No. 5237 dated 26/9/2004, additional penalties will be applied as specified in Article 137. These additional penalties will be applied as a factor of one.

(4) Those who sell, establish, operate, or use radio devices or systems that require permits and licenses in violation of Article 37 of this Law without obtaining permission from the Authority shall be subject to an administrative fine of up to two thousand (2,000) days. Those who use these devices for the purpose of violating national security, even if the necessary permits have been obtained, shall be sentenced to imprisonment for a period ranging from six (6) months to one (1) year and a judicial fine of up to ten thousand (10,000) days, unless their actions constitute a more severe crime.

(5) In cases where individuals authorized, permitted, and allocated by the Authority:

1. a) Fail to rectify violations in cases where radio systems are installed, operated, or altered in a manner contrary to the Authority’s regulations, technical characteristics, or purpose within the period specified by the Authority,
2. b) Fail to take necessary measures to eliminate electromagnetic interference or other disruptive effects on other electronic communication systems due to non-compliance with the technical requirements and procedures established by the Authority,

they shall be subject to a judicial fine of at least one hundred (100) days.

(6) Those who engage in or have coded and encrypted communication in violation of Article 39 of this Law shall be sentenced to a judicial fine ranging from five hundred (500) days to one thousand (1,000) days.

(7) Those who are found to have released into the market or used devices that were delivered to manufacturers, distributors, or users for disposal in violation of the third paragraph of Article 53 of this Law shall be subject to a judicial fine ranging from one thousand (1,000) days to five thousand (5,000) days.

(8) Those who act in violation of Article 54 of this Law shall be subject to a judicial fine of up to five thousand (5,000) days.

(9) Those who act in violation of the first and second paragraphs of Article 55 of this Law shall be sentenced to a judicial fine ranging from one thousand (1,000) days to fifteen thousand (15,000) days.

(10) Those who act in violation of the provisions of the first paragraph of Article 56 of this Law shall be fined from one thousand (1,000) days to five thousand (5,000) days; those who carry out such activities in violation of the second, third, fourth, and fifth paragraphs are subject to imprisonment for a term ranging from fifty (50) days to one hundred (100) days and a judicial fine.

(11) If the crimes defined in this Article are committed within the framework of an organization’s activities, the penalties to be imposed shall be increased by half. In the case of legal entities engaged in such activities, specific security measures provided for in Law No. 5237 shall also apply.

• Elektronik Haberleşme Sektörüne İlişkin Tüketici Hakları

The procedures and principles for protecting consumer rights and interests in the electronic communications sector are regulated in the “Regulation on Consumer Rights in the Electronic Communications Sector.” This Regulation was prepared based on the Electronic Communications Law numbered 5809, dated November 5, 2008.

• The Establishment and Content of Subscription Agreements in the Electronic Communications Sector

According to Article 7 of the Regulation on Consumer Rights in the Electronic Communications Sector:

In cases where the operator undertakes to perform a service periodically or continuously, a subscription agreement shall be concluded with the mutual consent of the parties. Subscription agreements can be made with a handwritten signature or a secure electronic signature. Subject to the responsibility of the operator to take all necessary precautions for the establishment and implementation of the contract, subscription agreements can be concluded electronically in accordance with the procedures determined by the Authority. The Authority may impose additional obligations on operators regarding subscription agreements.

 

Operators are required to ensure that the following minimum information is included in subscription agreements:

• The subject of the contract.
• The place and date of the contract.
• Information that identifies the parties to the contract, including their names, titles, full addresses, and service numbers that describe the subscription.
• Obligations of the parties.
• The duration of the contract, conditions for termination, and renewal.
• Description of the services to be provided, service quality levels, and the period within which the initial connection will be made.
• General information about maintenance/repair services to be provided.
• Information about how up-to-date information on the content of the tariffs and changes in tariffs can be obtained.
• Information on the procedures for remedying damage and/or repayment in the event that the service quality level specified in the contract cannot be achieved due to the operator’s fault.
• Information about how the provision of services may be interrupted or restricted in the event of the subscriber’s failure to pay the bill within the specified time and the legal consequences (default, legal proceedings, etc.).
• The tariff and subscription package preferred by the subscriber on the date of the contract.
• The dispute resolution procedure, including legal remedies, in case of a dispute between the subscriber and the operator.
• Information about the technical equipment, devices, and hardware required for the subscriber to benefit from the service.
• Information on measures to be taken or required to be taken by the operator and the subscriber against situations that may threaten security during the use of the service.
• The date of approval by the Authority of subscription agreements that need to be approved.
• Information that the operator is also responsible for the defect of the device in services including the provision of the device.
• If a fee is charged under the name of a guarantee, deposit, or security from the consumer, the amount of this fee and information on how and within what period it will be refunded to the consumer in the event of termination of the subscription.
• Information on the process of returning the modem, telephone, satellite receiver, and similar devices to the operator in case the contract includes the provision of devices, and information on the process to be followed in case of device failure.
• Please note that this is a summary translation of the regulations, and the specific legal language and requirements may vary. It is advisable to consult the original regulations or seek legal advice for precise legal interpretations.

Subscription agreements must be prepared in at least 12-point font size, and obligations imposed on subscribers must be clearly, plainly, and comprehensibly specified in bold black letters. Sample subscription agreements must be easily accessible and published on operators’ websites.

Operators are obliged to provide a complete subscription agreement prepared in accordance with this Regulation. If the subscription agreement is established with a secure electronic signature, the operator is obliged to obtain a copy of the identity card.

In case subscription agreements are established with handwritten signatures, the operator is required to collect the following documents alongside the subscription agreement:

• For individual subscriptions: a copy of the Turkish Identification Number and an identification document,
• For corporate subscriptions: the Turkish Identification Number of the authorized person, an identification document, and a document demonstrating the authority for representation through a signature circular,
• For subscriptions by foreign nationals: a copy of a passport with a suitable expiration date, an internationally recognized equivalent document, or a national equivalent identification document. The originals of the required identification documents are to be presented. Operators acquire copies of these documents from the originals by transferring them to an appropriate electronic medium.
• Operators are obligated to maintain subscription agreements and the necessary information and documents required for the establishment of the contract in accordance with the entity’s form.
• To enable the activation of the subscriber’s line, the operator verifies the completeness of the documents relevant to the establishment of the subscription agreement and the accuracy of the information in these documents through the Identity Sharing System of the Ministry of the Interior, General Directorate of Population and Citizenship Affairs.
• One copy of the executed subscription agreement is provided to the subscriber on paper or in an appropriate electronic medium, unless the subscriber specifies otherwise.
• During the process of making a subscription agreement, operators inquire about the preferences of subscribers regarding the inclusion of their personal data in directories, particularly for directory services.

Operators, upon request by visually impaired consumers, offer subscription agreements and invoices in Braille alphabet or through auditory means as a minimum, free of charge.

• Conditions for Electronic Communication Subscription

With the Regulation Amending the Regulation on Consumer Rights in the Electronic Communications Sector, which entered into force on January 18, 2022, a new era has begun for electronic communication subscriptions.

The 11th paragraph of Article 9 of the related Regulation states, “In Internet access services, if the criteria determined by the Authority for Address-Based Internet Speed Measurements, taking into account the data rates announced for the service to be provided at the relevant address in the summary of the contract, are not met, the committed subscription may be terminated by the subscriber without any cancellation fee, except for the remaining device cost,” thereby introducing a new regulation that ensures subscribers are not charged a cancellation fee if the promised internet speed cannot be provided.

Furthermore, with the provision added by Article 8 of the Regulation, regarding processes that require subscriber consent in accordance with the relevant legislation:

1. a) Consents for these processes shall be obtained separately and cannot be combined under a single/unified consent.
2. b) Except for cases of purchasing a package that only involves making international calls or international roaming benefits, providing consent for these processes shall not be considered granted merely by accepting a contract, commitment, tariff, package, or campaign.
3. c) Subscriber consent may be requested for these processes in exchange for discounts or additional benefits.

The regulation stipulates that processes requiring subscriber consent cannot be consolidated under a single consent, and consent must be obtained separately.

According to the provision added by Article 9 of the Regulation, the commitment period agreed between the operator and the subscriber shall not exceed twenty-four months. This means that the commitment period is limited to a maximum of 24 months.

• Consumer Rights

According to Article 5 of the Regulation, consumers benefiting from electronic communication services have the following minimum rights:

1. a) The right to access services under equal conditions as similar consumers and to benefit from services at non-discriminatory, fair prices,
2. b) The right of consumers to enter into a contract with the operator providing this service when subscribing to electronic communication services,
3. c) The right of subscribers to request whether their personal data is included in public directories,

ç) The right to register in directories without discrimination and to benefit from directory services, whether for a fee and/or free of charge,

1. d) The right to be informed about emergency call services and to have free access to these services,
2. e) The right of subscribers to request detailed bills,
3. f) The right to obtain information about the scope of the electronic communication service provided by the operator,
4. g) The right to access clear, detailed, and up-to-date information about the tariffs/campaigns to be applied for the services offered to subscribers, as well as the right to be informed of any changes in tariffs/campaigns before they come into effect,

ğ) The right of subscribers to withdraw from the tariff, campaign, and similar services they have participated in, including value-added electronic communication services, through the method they applied for or a simple method,

1. h) The right to request an application based on non-discrimination among similar consumers in the resolution of faults, provided that the relevant provisions of legislation regarding health, fire, disaster, security, and similar emergency and security-related institutions and organizations are reserved,

ı) The right to benefit from services of quality that comply with international standards and standards determined by the Authority.

• Unfair Terms in Subscription Agreements and Interpretation of the Agreement

According to Article 10 of the Regulation:

(1) Unilateral clauses in subscription agreements, commitments, or campaigns imposed by the operator without negotiation with the subscriber, which cause an imbalance against the subscriber’s rights and obligations arising from the contract in a manner contrary to the principle of good faith, shall be considered as not written. If a provision in the subscription agreement is not clearly and comprehensibly drafted or has multiple interpretations, it is deemed to cause a detriment to the subscriber, and in such cases, the interpretation in favor of the subscriber is essential.

(2) If a provision in the subscription agreement contradicts the basic idea underlying the regulation on which it is based, or if it unduly limits the fundamental rights and obligations inherent to the nature of the contract to the extent that it jeopardizes the purpose of the contract, it shall be considered contrary to the principle of good faith against the subscriber.

(3) Unusual contract terms that the subscriber cannot reasonably foresee, considering the circumstances, especially the outward appearance of the contract, are not considered part of the contract.

(4) If a provision in the subscription agreement is considered not to have been written under the first paragraph of this article, the contract remains valid with the rest of its content. In such cases, the contract content is determined according to the regulations. If the change resulting from the determination of the contract content in this way produces unforeseeable consequences for the subscriber, the contract becomes entirely invalid.

(5) A list of terms that may be considered unfair in subscription agreements is provided in Annex-1 of this Regulation to provide guidance and is not limited in nature.

(6) The term “subscription agreement” in the application of this article covers commitments, all kinds of additions to the subscription agreement, changes in the contract, tariff, and campaign conditions.

 

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