1- "The First(s)": The Computer, The Internet, Informatics, Informatics Offence . . .

The first encounter of Turkiye with the computer was with the first computer system installed at the General Directorate of Highways in 1960 and the first encounter with the Internet was when a 64 Kbps capacity Internet connection was made on 12 April 1993 at the Middle East Technical University.

Besides these "firsts" in the field of informatics, the first instance for the concept of informatics taking place as a legislation in our criminal law was with the definition of "Bilişim Alanı" ("Bilgileri toplayıp depo ettikten sonra, bunları otomatik işleme tabi tutma sistemlerinden oluşan alan") in the 342^nd clause of the 1989 preliminary draft; and the concept of "bilişim suçları" entering the "Türk Ceza Kanunu" for the first time was with the amendment made on the previous "765 Sayılı Türk Ceza Kanunu" (The amendment made by the Law of 3756 published in the Official Gazette no. 20901, dated 14.06.1991). Only with this amendment was the subtitle "Bilişim Alanında Suçlar" included as a first on the "Türk Ceza Kanunu". ¹

However, the most comprehensive regulations in the field of informatics offenses was made under the title "Bilişim Alanında Suçlar" of the latest "Türk Ceza Kanunu" no. 5237, dated 26.09.2004 and clauses such as, "Bilişim sistemine girme", "Sistemi engelleme, bozma, verileri yok etme veya değiştirme", "Banka veya kredi kartlarının kötüye kullanılması", "Tüzel kişiler hakkında güvenlik tedbiri uygulanması" have been included in the law and further more, in case the offences which are covered by the clauses about "Nitelikli hırsızlık", "Nitelikli dolandırıcılık" are conducted via informatics systems, the act is arbitrated as aggravating circumstance.

2- The Law of 5651

As can be seen in the paragraphs above, the early regulations carried out on our system of law on the field of informatics were made joined with the concept of "crime". However, The Law of 5651, dated 04.05.2007, "İnternet Ortamında Yapılan Yayınların Düzenlenmesi ve Bu Yayınlar Yoluyla İşlenen Suçlarla Mücadele Edilmesi Hakkında Kanun", published in the Official Gazette no. 26530, on 23 May 2007 and became effective, does not only encompass regulations against offences but also includes provisions that define the role of all actors operating in the Internet environment, and their legal obligations. That is why the law may be mentioned as the first of the arrangements regarding the activities in the medium of the Internet.

After the 5651 law becoming effective, three legislative regulations, mentioned below, have been released regarding and to be a basis of application of the law:

1) "Telekomünikasyon Kurumu Tarafından Erişim Sağlayıcılara ve Yer Sağlayıcılara Faaliyet Belgesi Verilmesine İlişkin Usul Ve Esaslar Hakkında Yönetmelik" (The Official Gazette 24 Oct. 2007 and no. 26680),

2) "İnternet Toplu Kullanım Sağlayıcıları Hakkında Yönetmelik" (The Official Gazette 1 Nov. 2007 and no. 26687),

3) "İnternet Ortamında Yapılan Yayınların Düzenlenmesine Dair Usul ve Esaslar Hakkında Yönetmelik" (The Official Gazette 30 Nov. 2007 and no. 26716)

In the law "İnternet Ortamı" is defined as, "Haberleşme ile kişisel veya kurumsal bilgisayar sistemleri dışında kalan ve kamuya açık olan İnternet üzerinde oluşturulan ortam" and "İnternet Ortamında yapılan yayın" is designated as, "İnternet Ortamında yer alan ve içeriğine belirsiz sayıda kişinin ulaşabileceği veriler". In the law the definitions of the actors on the "İnternet Ortamı" are given as well. In short, these actors are: "İçerik Sağlayıcı" who generate, modify and provide all kinds of data and information presented for the user; "Yer Sağlayıcı" who hosts or operates the systems that provide the services and contents; "İnternet Toplu Kullanım Sağlayıcı" who provide people with Internet access for a particular time and in a specific place; and "Erişim Sağlayıcı" who provide access to the internet for their users. To exemplify these definitions within the scope of actors in the university body; The personal users, academic and administrative units that have web pages on the "İnternet Ortamı" are evaluated as "İçerik Sağlayıcı"; the personal users, academic and administrative units that operate the server computers that run the contents or the services (web, ftp, e-mail, etc.) are evaluated as the "Yer Sağlayıcı"; the academic and administrative units that provide network connection to the campus backbone through the IP address block that has been assigned to them at such places as offices, PC Rooms, buildings etc. via that IP addresses block and the personal users that provide network connection to the campus backbone through the IP address assigned to their selves are evaluated as the "İnternet Toplu Kullanım Sağlayıcı". ²

With the Act of 5651 and the related legislation; the obligations of the actors mentioned above are given, the duties and power of the "Telekomünikasyon Kurumu İletişim Başkanlığı'nın (Başkanlık)" (http://www.tib.gov.tr/) within the scope of the act is defined, the basis and the principles to be complied with when regulating the publications on the "İnternet Ortamı" and the punishments to be applied in case of violation of the regulations are put forward.

As can be realized from the examples given, the Act of 5651 closely concerns the academic and administrative units, members and students. For this cause, a document ("ODTÜ Yerel Alan Ağında 5651 Sayılı Kanun Uyarınca Uyulması Gereken Kurallar") has been prepared and was made effective by the 2008 / 14-1 decision of the Administrative Board of the University (ABU). Furthermore, a meeting was held by the Computer Center on 16 March 2009 in order to inform the public in the University of the Act. Further explanatory information on the application of the law may be reached at the site address http://www.bidb.odtu.edu.tr/5651/.

The two basic enforcements brought within the scope of the law are: "hukuka aykırı içeriklerin yayından çıkarılması (ve cevap hakkı)", and the "erişimin engellenmesi" to the publications that have reasonable doubt of the nine violations³ the contents of which are stated in the law. The issues of tracking down the contents of the publications on the "İnternet Ortamı" by the "Başkanlık", the evaluation of the informed publication made to the informants center formed at the website (http://www.ihbarweb.org.tr/index.html) of the "Başkanlık" and measures as ban of access and / or removal of the content from publication, in case felony against the crimes encompassed by the law is ascertained after the evaluation, to be taken by the presidency is put under jurisdiction, an obligation of applying filtering for commercial "İnternet Toplu Kullanım Sağlayıcı"s is brought about, and for non-commercial "İnternet Toplu Kullanım Sağlayıcı"s to take the measures to prevent access to the content the topic of which poses felony are all demanded by the Act. Moreover, all the actions performed on the "İnternet Ortamı" be logged in accordance with the Law is also stated. In the paragraphs that follow brief information about the application of banning access and the removal of the content from publication is provided.

i) "İçeriğin yayından çıkarılması ve cevap hakkı": The person who claims to have his rights violated due to content may apply to the "İçerik Sağlayıcı" (in case unreachable, to the "Yer Sağlayıcı") via the "İnternet Ortamı" or in person and ask for the removal of the content from publication and the answer prepared to be published for a week. In case the demand is not fulfilled within two days the person may appeal to a court of "Sulh Ceza" where in accordance with the magistrate's decision taken in three days without a trial, the action of removing the content and the answer to be published is applied (may be objected according to CMUK). The responsible person ("yayın sorumlusu") that does not fulfill the magistrate's verdict within the conditions and durations stated under the Law is sentenced to imprisonment from six months to two years.

ii) "Erişimin engellenmesi": The decision of preventing access as a "Koruma tedbiri" may be taken by; the magistrate during investigation (by the Public Prosecutor in cases of hindrance upon delay, to be presented to the authentication of a judge in twenty-four hours) and by the court during the prosecution (objection to the decision may be made by the "Başkanlık" or the related parties in accordance with the CMUK. In case of the nine violations included in the Act being carried out by the content or location providers abroad or even if the content or location providers are inland for felonies regarding TCK clause 103, paragraph 1 ("çocukların cinsel istismarı") or "müstehcenlik" broadcasts, an issue of the TCK clause 226, the decision of preventing access can be made as an "idari tedbir" by the "Başkanlık" on its own account and will be submitted to the approval of the judge within twenty-four hours. The judge gives the verdict at least in twenty-four hours; when the judge does not give approval, the "Başkanlık" immediately lifts the sanction.

The decision of the prevention of access and the reason (for the prevention of access) is relayed to the "Başkanlık" and by the "Başkanlık" to the "Erişim Sağlayıcı" on the electronic medium.⁴. If the need arises the "Başkanlık" may ask for the removal of the content published which is a subject of the prevention of access from the location provider.

3- CONCLUSION

The Act of 5651 has brought about obligations, regarding to the usage of the Internet, which has become an inseparable tool of our lives, closely related to all the actors (users, Internet service providers, public and private institutions etc.) of the Internet. The University and the units and users that make use of the facilities provided by the University have undergone various levels of obligations with the arrangements imposed by The Act. That is why all actions must be in accordance with the document "ODTÜ Yerel Alan Ağında 5651 Sayılı Kanun Uyarınca Uyulması Gereken Kurallar" authorized and made effective by the ABU so as to avoid unwanted occurrences against the Act of 5651 (see, http://www.bidb.odtu.edu.tr/5651 - in Turkish).

Resource:
http://www.tbd.org.tr/webler/kamubiby/dosyalar/CalismaKonulari.htm: The legal aspects of the usage of Information Technology

Ayla Altun

All the definitions and titles which take place in the law and an bylaw are left in Turkish intentionally by the author in order to avoid any kind of misconseption.