Turkey: A Legal Challenge To Remove A State-applied Access Ban To A Website: Impressions On Imgur.com Case

As social-media-savvy users may know, Imgur is an image sharing community and image host. Imgur has been created by Adam Schaaf in 2009 as a "Gift to Reddit" (Mr. Schaaf's own words in a Reddit post)¹. Imgur, quickly took off, became go-to option to upload and share images for most people and created its own community.

Unfortunately, access to Imgur was blocked in Turkey around 2016. Since several other online platforms (most famous of them was YouTube) were subject to same access-block by then, block of access to Imgur drew fairly less attention in Turkey. This was probably due to the fact that, Imgur (and Reddit) had a niche user base in Turkey (especially compared to user bases in Western countries) and most people took the option to simply using a VPN or altering DNS settings to find a way around the block. The main reason we took interest in this case (which did not exactly fall within the scope of our primary practice – IP law) was that our litigation team were long-time Reddit and Imgur users and having to resort to workarounds such as VPNs and DNS changes were frustrating.

This article aims to provide insights and experiences we have gained from the process and share them with our colleagues and anyone who is interested.

Access to Imgur was blocked on several grounds, actually. Among them were non-consensual explicit photos with derogatory captions, footage of a terrorism act against a Turkish public prosecutor and illegal sales of medicine. Illegal sales of medicine stood out amongst these grounds, because

a) It was the only cause of access-block which was not rendered by a court of justice. It was applied as an administrative measure by an administrative authority.

b) It was the only cause of access-block which covered whole domain (Imgur.com and i.imgur.com) instead of the specific link to the "problematic" content (for example https://i.imgur.com/nameofthecontent.jpg). Other grounds blocked the specific link which allowed Turkish internet users to access to the remaining of the website.

c) The enforcing authority, Erişim Sağlayıcıları Birliği (Association of Access Providers), removes access-block of judicial origin, however they lack the authority to remove the access-blocks of administrative origin, ex-officio. The Association requires a written notice from the administrative body.

Given that the remaining grounds (non-consensual explicit photos and footage of a terrorist act) were already removed by the time we handled the case, we have focused on the remaining issue: Illegal sales of medicine.

In order to resolve the situation, we have conducted two meetings with the administrative authority who rendered the decision about the access-blocks. From the context of the meetings, it was our understanding that the administrative authority were willing to consider lifting the access-block for Imgur.com if Imgur were to provide an undertaking which stated they are willing to cooperate for posts which advertised illegal sales of medicine. Given that, this was not a freedom of speech issue and Imgur was also in compliance with similar regulations (such as The Ryan Haight Online Pharmacy Consumer Protection Act of 2008) and already have been working with governing bodies against online and unchecked sales of prescription drugs.

As representatives of Imgur, we have drafted an undertaking in which we have stated our commitment to remove any posts which promoted unchecked sale of a drug, as soon as possible, in compliance with İspençiyari and Tıbbi Müstahzarlar Kanunu No. 1262 (English: Code of Pharmaceuticals And Medical Preparations). However, due to the common characteristics of the social media platforms, we also stated that there aren't any methods available to stop such content before being posted.

After several verbal conversations, we secured another meeting with the administrative body and were told that access-block will not be lifted, despite the undertaking. As we were leaving frustrated, we understood that we had to get a court order to stop the administrative decision.

After discussing the matter with Imgur, we have filed a lawsuit to revoke the administrative body's written decision which was served to us as a response to our undertaking (which also included our demands for lifting the access-block).

First good news came around four months. We were notified that our injunction request were granted. With the swift execution of the injunction order (thanks to the administrative body's diligence), Imgur.com was once again accessible by Turkish internet users.

Around April 2020, the court decision were submitted to us. The court's decision stated that the administrative body did not perform necessary examination to see if the content advertising illegal sale of the medicine continued, while it should have; therefore, the decision on access-block should be lifted.

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