Status of Digital Media Platforms and Digital Broadcasting Acts under Turkish Law

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Introduction

With the impact of developing technology and growing fast-consuming culture, the concept of media is changing and getting wider every single day. The number and the market value of digital and streaming media contents is getting higher in accordance with the increase in investments in this field. While digital media platforms are rapidly replacing traditional media and television, Turkey, which is a very good market for the media and entertainment industry, is rapidly adapting to this change.

In 2021, TurkStat measured the Internet usage rate as 82.6 percent in individuals aged 16-74. Users in Turkey spend an average of 7 hours and 57 minutes on the Internet on any device. 60 million of the population are social media users (about 70.8% of the total population).[1] The high numbers of internet and social media usage brings with it the demand for digital media and streaming platforms and first digital media and streaming platform has been started broadcasting in 2015 in Turkey and others followed. Therefore, this development led to the necessity of taking some legal measurements and making some arrangements in this field by the authorities.

Non-paid monitoring systems, which are supported by technologies such as cable broadcasting and satellite, are being replaced by paid systems. There are many systems that are similar to each other but differ in terms of algorithms or membership systems.

Transmission Methods of the Television Broadcasting[2]

Today the channels and transmission methods of the television broadcast are briefly determined as follows[3];

Free Tv: It is the oldest form of television, which is non-payment, that delivers the broadcast stream to the audience through wired, wireless and other means.
Pay Tv: It is the new generation, pay-per-view systems.
Iptv: It is a system that transmits the content to the viewer via an internet connection, a private network or a device called a “set-top box”. It provides high quality broadcasting and offers paid viewing. It is equipped with features such as stopping, forwarding or rewinding the watch. One of the terms brought by this platform is “catch-up”. It is the name given to the technology of providing opportunities such as forward and rewind by recording the content for a certain period of time.
Web Tv: It is a type of broadcast that offers the opportunity to reach the audience through internet pages and sites and services open to the public. It offers the opportunity to be watched from browser or media programs.
Internet Tv: It is a system that allows the viewer to record the content via the internet and delivers the broadcast to the user through the method known as streaming. Internet infrastructure, speed, bandwidth, devices used in the region are among the factors affecting the quality of the broadcast.
Mobile Tv: It is a system that delivers its content to the user through mobile devices, with the help of operating systems such as iOS, Android, websites or applications.
Smart Tv: It is a system provided by devices that enable data flow over the internet, which also has multimedia features that can benefit from other Free TV and Pay TV platforms by connecting to social media while playing games on the same device.

Digital Media and Digital Broadcasting Platforms

“Digital Media” means any communication media including sound, video, graphics, etc. that operate with the use of any of various encoded machine-readable data formats. Digital media can be created, viewed, distributed, modified, listened to, and preserved on a digital electronics device. [4]

“Broadcast Platform” means the display of audio-visual video via traditional broadcast methods namely analogue and digital television. [5] A Digital Broadcasting Platform is an on-demand online digital media content source for TV Shows, movies, and other streaming media.

“OTT” (Over the Top) is the system that enables rapid distribution of cinema and television content over the internet and has already taken the place of traditional distribution technologies and OTT refers to the distribution of content over an internet network without any internet service provider. Therefore, the content distribution models of OTT are determined as “VOD” (Video on Demand) and “EST” (Electronic Sell Through).

EST (Electronic Sell Through): This technology, also called DTO (download to own), refers to the system that the viewer can watch at any time by licensing the content indefinitely or for a period of time with the purchase method of the end user, downloading the digital copy of the work to the internet-connected device, hard disk or saving it in a virtual storage.
VOD (Video on Demand): VOD is a media distribution system that allows users to access videos without a traditional video playback device and the constraints of a typical static broadcasting schedule. Television VOD systems can stream content, either through a traditional set-top box or through remote devices such as computers, tablets, and smartphones. VOD users can permanently download content to a device such as a computer, digital video recorder or a portable media player for continued viewing. VOD technologies have also created different business models within themselves.
“SVOD” (Subscription supported Video on Demand) is video on demand service that allows users to access an entire library of videos for a small recurring fee. This fee may be charged daily, weekly, monthly or annually, depending on the service. Once the users have paid for access to the service, the users can watch as many videos as they want on any device with internet access.
SVOD, offers flexible subscription options, creates an ongoing revenue stream, engages your audience and creates loyal subscribers and gives you the ability to publish exclusive content. Examples of SVOD businesses include Netflix, HBO Max and Disney+.
“TVOD” (Transactional Video on Demand) is a video on demand service that allows the users to buy content on a pay-per-view basis. It’s basically the opposite of SVOD, in the sense that the users are charged per video or video package rather than gain access to the entire catalog.
TVOD can also be known as Pay-Per-View (PPV) and allows the users to release exclusive, timely content, gives freedom to offer single videos, series, or feature films and provides options for videos to be rented or purchased, expanding your audience. Some of the most notable examples of TVOD services are Amazon’s Video Store, Apple iTunes and Sky Box Office.
“AVOD” (Advertising supported Video on Demand) is a video on demand service that is offered to the end user free of charge, but optionally, by adding any advertisement to the video, it is possible to earn money from Ad-supported video services.
AVOD gives user’s audience the opportunity to watch the content for free, creating a low barrier to entry, doesn’t require a cable or satellite subscription, available to a wider audience and provides a scalable revenue solution for very large or growing audiences. The most important player broadcasting AVOD is Youtube.

OTT platforms, which started the broadcasting life within the framework of broadcast type as stated above, can also apply the applications of other broadcasting models to their own structure in order to adapt to competitive market conditions, reach more users and increase their income over time.

Establishment of OTT Platforms under Turkish Law

With the foreign OTT platforms starting to broadcast in turkey and the establishment of local OTT platforms in the following period, the need to enact and develop the legislation on digital media broadcasting arose. There are several important regulations regarding the way investors who want to provide on-demand broadcasting services in Turkey should apply the following main steps.

According to Article 29.1 of “Law on The Establishment and Broadcast Services of Radio and Televisions No.6112”[6] all digital broadcasting platforms that will broadcast in Turkey must first be authorized by Radio and Television Supreme Council (“RTUK”) under Information and Communication Technologies Authority (“BTK”) supervision to provide electronic communication services. The administrative and financial requirements that media service providers, platforms and infrastructure operators must comply with, as well as the principles related to the broadcast license and broadcast transmission authority, are determined by RTUK. A “broadcast transmission certificate” is issued by RTUK to organizations that meet these requirements. All these obligations are explained by the “By-Law on Administrative and Financial Conditions which Media Service Providers and Platform and Infrastructure Operators are required to comply with”[7], published on 15/6/2011.

In the relevant regulation, the on-demand broadcasting service, known as VOD, is defined as a broadcasting service in which programs are watched or listened to at a time of the user’s choice and at the individual request of the media service provider depending on a catalog of programs organized by the media service provider. According to the regulation, the listed requirements must be fulfilled for a broadcasting license for VOD services;

The applicant must be established as a joint stock company;
Non-public shares must be registered share;
The articles of association of the company should clearly state the issues governing the partnership structure and issues of participation;
No usufruct shares should be issued in favor of any person;
Domestic and foreign shareholders should not own preferred stocks;
The provisions of the sample articles of association prepared by RTÜK and published on its website must be included in the company’s articles of association; and
The capital amount of the organizations applying for a broadcasting license in order to provide on-demand broadcasting services must be at least 100.000 TL.

During the application, a document obtained from BTK in accordance with the “Electronic Communication Law No. 5809” must also be submitted by Platform and infrastructure operators.

According to Article 29/A added on 21.03.2018 of Law on The Establishment and Broadcast Services of Radio and Televisions, those who provide this service on the Internet will be able to operate under the provisions of the “By-Law on The Provision of Radio, Television and On-Demand Media Services via Internet Environment”[8] after obtaining the relevant license. Media service provider organizations that have temporary publishing rights and/or publishing licenses from RTUK can also submit their publications via the Internet with these rights and licenses by being registered by RTUK. However, Media Service Providers who want to provide broadcasting services only on the Internet should obtain a different license to broadcast on the Internet (one of the Internet-Radio, Internet-TV or Internet-OnDemand Broadcast Licenses). According to this Regulation. separate licenses must be obtained for the provision of each of these services.

Only joint stock companies are authorized to obtain a Broadcast License on the Internet. Unlike the “Broadcast License” the “Broadcast Transmission Authority on the Internet” which will be used by the Platforms providing the transmission of these services can also be granted to Limited Liability Companies. In this case, there is no need to submit the document obtained from BTK under the “Electronic Communication Law No. 5809”.

The Broadcast License fee for 10 years Media Service Providers that broadcast/will make broadcasts from the Internet must pay for Internet-OnDemand Broadcast (VOD) services is 182.168 TL for 2022 according to RTUK.[9] In addition, Media Service Providers that provide their broadcasting services to subscribers and/or users for a fee and through conditional access are required to pay 0,5% of their annual net sales to TRUK by the end of April of the following year. The fee for the Authorization of Broadcast Transmission from the Internet has also been determined as 182.168 TL for 2022.[10] In addition to this fee, Online Media Platform Operators providing conditional access have been obliged to pay 0,5% of their annual net sales to RTUK every year.

Obligations of Media Service Providers

“By-Law on the Provision of Radio, Television and On-Demand Media Services via Internet Environment” has regulated the obligations of media service providers which has broadcast license as follows;

To stop the internet service of On-demand Broadcasts that are not considered appropriate by RTUK, remove them from the program catalog;
In order to monitor and evaluate the broadcasting services provided by RTUK, to allow RTUK access to the audio and video files used in the broadcasting service, to monitor them remotely and, if necessary, to register them in the RTUK recording system, to grant RTUK the number of subscription rights requested by RTUK, the necessary software and hardware with all kinds of licenses and usage rights;
Encrypting audio along with the image in encrypted broadcasts in an incomprehensible way;
Informing RTÜK of the internet addresses, address, and registered e-mail address where the broadcasting service will be offered, the name and contact information of the responsible director and audience representative, as well as changes related to them, and posting them on their website;
To keep the records for one year from the date of broadcast;
To deliver a copy of the record requested by the RTÜK within ten (10) days after the notification;
Notifying RTÜK of program catalogs for on-demand broadcasts;
Informing viewers about the content of the program services using the protective symbol system;
To declare their commercial communication revenues that they obtain in accordance with the provisions of the By-Law published in the Official Gazette No. 28037 dated 26.08.2011 on the Principles and Procedures relating to the Monitoring of the Commercial Communication Revenues obtained by the Media Service Providers and their Declarations and Payments of the Shares of RTUK to be Made over these Revenues[11] and make the payment of that amount of the share to RTUK; and
To make a payment to RTUK amounting to 0.5% of their net income that they have collected from their sales until the end of the month of April of each following year in case they provide their services to their users by means of a conditional access module or in return for a fee.

Obligations of Online Media Platform Operators

Not to transmit the publications of media service providers that do not have a broadcast license, whose broadcast license period has expired or revoked;
Informing RTUK of the number of users joined to their conditional access module to whom it provides conditional access at the beginning of december each year and when requested by RTUK;
To get their broadcasts that they transmitted off to the Supreme Council if such a request is made by it in a way to be recorded by the Supreme Council’s recording system and allot the subscription rights in the number to be demanded by the Supreme Council and, for this purpose, the necessary software and hardware along with them with all their licenses and their rights of use;
Providing remote monitoring by allowing access to RTUK;
To allow RTUK to access the audio and video files that are used in their broadcasts for RTUK to view them from a remote location and if needed, to ensure the recording of these files into RTUK’s recording system;
At the beginning of October of each year, reporting the title, address, telephone number, logo/call sign, license type and country and language of broadcasting of the media service provider to which their broadcasts are transmitted, are listed; Notify any changes related to these within one month at the latest from the date of the change;
To make a payment to RTUK amounting to 0.5% of their net income that they have obtained from their sales until the end of the month of April in each following year as an additional payment to the authorization fee for the transmission of their media services if they provide them via a conditional access module; and
To inform RTUK about the website addresses through which they make the transmission of their media services, information of their identity, their addresses, and their registered e-mail addresses and on any changes regarding their declared information and publish all of this information on their website.

All these obligations and mandatory procedures also apply to foreign media service providers who want to broadcast on the Internet or offer to broadcast transmission services via Internet. Those who violate the relevant provisions may face sanctions such as cancellation of broadcast licenses, removal of content and/or blocking access and filing criminal charges.

Conclusion

There are different licenses to be obtained in order to establish an online broadcasting platform and broadcast transmission for on-demand broadcasting services in Turkey. The types and characteristics of companies that can obtain these licenses are regulated in detail in the By-Law on the Provision of Radio, Television and On-Demand Media Services via Internet Environment. In this framework, all criteria regarding domestic and foreign investors are the same. Any Platform broadcasting any kind of video content must be found in accordance with the regulations of BTK and RTUK and comply with local laws, especially “Law on The Establishment and Broadcast Services of Radio and Televisions No.6112” and “Law on The Regulation of Publications Made on The Internet and The Fight Against Crimes Committed Through These Publications No.5651” [12]. The increase in legal certainty with the regulations made in this growing field is a positive development. Although the administrative obligations and the obligation to establish a company can be intimidating for foreign investors, we hope that Turkey will receive even more investment in the coming days due to the high demand.

[1] https://turkey.mom-rsf.org/en/media/online/, access date:10.02.2022

[2] http://nek.istanbul.edu.tr:4444/ekos/TEZ/ET002854.pdf

[3] https://dergipark.org.tr/en/download/article-file/1806259

[4] https://en.wikipedia.org/wiki/Digital_media, access date: 11.02.2022

[5] https://www.lawinsider.com/dictionary/broadcast-platforms

[6] https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6112.pdf

[7] https://www.mevzuat.gov.tr/anasayfa/MevzuatFihristDetayIframe?MevzuatTur=7&MevzuatNo=15045&MevzuatTertip=5 ,for eng. https://www.rtuk.gov.tr/by-law-on-administrative-and-financial-conditions-with-which-media-service-providers-and–platform-and-infrastructure-operators-are-required-to-comply/4049/en

[8] https://www.resmigazete.gov.tr/eskiler/2019/08/20190801-5.htm , for eng. https://www.rtuk.gov.tr/by-law-on-the-provision-of-radio-television-and-on-demand-media-services-via-internet-environment/4060/en

[9] https://www.rtuk.gov.tr/2022-yili-lisans-ve-yetkilendirme-ucretleri/1730 , decision No. 2021/50-6 of 22.12.2021 Access date:14.02.2022

[10] https://www.rtuk.gov.tr/2022-yili-lisans-ve-yetkilendirme-ucretleri/1730, Access date:14.02.2022

[11] https://www.resmigazete.gov.tr/eskiler/2011/08/20110826-23.htm Access date:17.03.2022

[12] https://www.mevzuat.gov.tr/mevzuatmetin/1.5.5651.pdf