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 "Bili�im Alan�" ("Bilgileri toplay�p depo ettikten sonra, bunlar� otomatik i�leme tabi tutma sistemlerinden olu�an alan") in the 342^nd clause of the 1989 preliminary draft; and the concept of "bili�im su�lar�" entering the "T�rk Ceza Kanunu" for the first time was with the amendment made on the previous "765 Say�l� T�rk 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 "Bili�im Alan�nda Su�lar" included as a first on the "T�rk Ceza Kanunu". ¹

However, the most comprehensive regulations in the field of informatics offenses was made under the title "Bili�im Alan�nda Su�lar" of the latest "T�rk Ceza Kanunu" no. 5237, dated 26.09.2004 and clauses such as, "Bili�im sistemine girme", "Sistemi engelleme, bozma, verileri yok etme veya de�i�tirme", "Banka veya kredi kartlar�n�n k�t�ye kullan�lmas�", "T�zel ki�iler hakk�nda g�venlik tedbiri uygulanmas�" have been included in the law and further more, in case the offences which are covered by the clauses about "Nitelikli h�rs�zl�k", "Nitelikli doland�r�c�l�k" 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, "�nternet Ortam�nda Yap�lan Yay�nlar�n D�zenlenmesi ve Bu Yay�nlar Yoluyla ��lenen Su�larla M�cadele Edilmesi Hakk�nda 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) "Telekom�nikasyon Kurumu Taraf�ndan Eri�im Sa�lay�c�lara ve Yer Sa�lay�c�lara Faaliyet Belgesi Verilmesine �li�kin Usul Ve Esaslar Hakk�nda Y�netmelik" (The Official Gazette 24 Oct. 2007 and no. 26680),

2) "�nternet Toplu Kullan�m Sa�lay�c�lar� Hakk�nda Y�netmelik" (The Official Gazette 1 Nov. 2007 and no. 26687),

3) "�nternet Ortam�nda Yap�lan Yay�nlar�n D�zenlenmesine Dair Usul ve Esaslar Hakk�nda Y�netmelik" (The Official Gazette 30 Nov. 2007 and no. 26716)

In the law "�nternet Ortam�" is defined as, "Haberle�me ile ki�isel veya kurumsal bilgisayar sistemleri d���nda kalan ve kamuya a��k olan �nternet �zerinde olu�turulan ortam" and "�nternet Ortam�nda yap�lan yay�n" is designated as, "�nternet Ortam�nda yer alan ve i�eri�ine belirsiz say�da ki�inin ula�abilece�i veriler". In the law the definitions of the actors on the "�nternet Ortam�" are given as well. In short, these actors are: "��erik Sa�lay�c�" who generate, modify and provide all kinds of data and information presented for the user; "Yer Sa�lay�c�" who hosts or operates the systems that provide the services and contents; "�nternet Toplu Kullan�m Sa�lay�c�" who provide people with Internet access for a particular time and in a specific place; and "Eri�im Sa�lay�c�" 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 "�nternet Ortam�" are evaluated as "��erik Sa�lay�c�"; 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 Sa�lay�c�"; 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 "�nternet Toplu Kullan�m Sa�lay�c�". 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 "Telekom�nikasyon Kurumu �leti�im Ba�kanl���'n�n (Ba�kanl�k)" (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 "�nternet Ortam�" 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 ("ODT� Yerel Alan A��nda 5651 Say�l� Kanun Uyar�nca Uyulmas� 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 ayk�r� i�eriklerin yay�ndan ��kar�lmas� (ve cevap hakk�)", and the "eri�imin 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 "�nternet Ortam�" by the "Ba�kanl�k", the evaluation of the informed publication made to the informants center formed at the website (http://www.ihbarweb.org.tr/index.html) of the "Ba�kanl�k" 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 "�nternet Toplu Kullan�m Sa�lay�c�"s is brought about, and for non-commercial "�nternet Toplu Kullan�m Sa�lay�c�"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 "�nternet Ortam�" 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) "��eri�in yay�ndan ��kar�lmas� ve cevap hakk�": The person who claims to have his rights violated due to content may apply to the "��erik Sa�lay�c�" (in case unreachable, to the "Yer Sa�lay�c�") via the "�nternet Ortam�" 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 ("yay�n 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) "Eri�imin 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 "Ba�kanl�k" 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 ("�ocuklar�n cinsel istismar�") or "m�stehcenlik" broadcasts, an issue of the TCK clause 226, the decision of preventing access can be made as an "idari tedbir" by the "Ba�kanl�k" 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 "Ba�kanl�k" immediately lifts the sanction.

The decision of the prevention of access and the reason (for the prevention of access) is relayed to the "Ba�kanl�k" and by the "Ba�kanl�k" to the "Eri�im Sa�lay�c�" on the electronic medium.⁴. If the need arises the "Ba�kanl�k" 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 "ODT� Yerel Alan A��nda 5651 Say�l� Kanun Uyar�nca Uyulmas� 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.