ELIG Gürkaynak Attorneys-at-Law | View firm profile
I. Introduction
Turkey recently enacted an amendment to the Turkish
radio and television legislation that will regulate radio, television and
on-demand broadcasts provided through internet and have these services and
their providers (media service providers and platform operators – please see
their definitions under II) under the supervision and authority of the Radio
and Television Supreme Council ("RTUK"). The amendment entered into force on
March 28, 2018. Providers of radio, television and on-demand services through
internet and platform operators transmitting these broadcasts will need to
obtain a license from the RTUK as of this date.
The amendment does not only relate to local broadcasters
in Turkey, but also concerns and covers foreign media service providers and
platform operators targeting audience in Turkey, regardless of whether they
provide their service and broadcasts in Turkish language.
This amendment was included in "the Draft Law Amending
the Tax Law, Certain Laws and Certain Decrees", which was enacted on March 21,
2018 with the law number 7103 ("Law No. 7103") and published in the Official
Gazette of March 28, 2018 and entered into force on the publication date. The
amendment proposes addition of a new article (Article 29/A) to the Law No. 6112
on the Establishment and Broadcasting Services of Radio and Television Enterprises
("RT Law") with the title "Broadcasting services through internet".
This amendment had wide media coverage and created a serious
public discussion throughout its legislative process. The initial text of this
amendment was quite controversial and raised concerns as to whether RTUK will
be vested with an authority to regulate, monitor and supervise all contents in
the internet medium and to impose restrictions on social media websites, video
sharing platforms and other websites. By virtue of these discussions, the text
of this amendment was subject to certain modifications before its enactment, in
a way to make its scope clearer.
II. Legislation Prior to the
Amendment
RT Law was previously not applicable to and RTUK did
not have authority over broadcasts through internet. The scope of the RT Law
covered the services that are provided by conventional broadcast entities
operating under a license obtained from the RTUK who broadcast directly to
customers, such as radio programs or television channels operating under an
authorization obtained from RTUK.
RT Law defines media service providers under Article 3
as legal entities that have the editorial responsibility to choose content for
radio, television and on-demand-broadcast services and who choose the way to
regulate and broadcast these services. As per RT Law, media service providers
are obliged to obtain broadcast license from RTUK to broadcast through means of
terrestrial, satellite and cable transmissions. RT Law also defines platform
operators as enterprises which transform multiple media services or multiple
signals into one and provide their transmission, through satellite, cable and
similar networks either in an encoded and/or decoded form that is accessible
directly by viewers. As both definitions did not refer to broadcasts through internet
and only refer to means of terrestrial, satellite or cable transmission, RTUK
did not have authority over broadcasts through internet under the legislation.
However, now that the new amendment (Article 29/A) entered
into force, RT Law is applicable to certain broadcasts through the internet.
III. Changes Introduced by
the Amendment
According to first paragraph of Article 29/A of RT Law,
which has been introduced by the recent amendment, even if the services are
provided through internet, media service providers willing to broadcast their
radio, television and on-demand broadcast services through internet are obliged
to obtain a broadcasting license from RTUK and platform operators willing to
transmit these broadcasts are obliged to obtain broadcast transmission
authorization from RTUK. The article also states that media service providers
which have temporary broadcast right and/or broadcast license from RTUK (e.g.
radio and television channels operating under a license and/or right
issued by RTUK) may broadcast through Internet and in
accordance with the RT Law and the Law No. 5651 on Regulation of Broadcasts via
Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No.
5651"). In other words, RTUK is now authorized to monitor such broadcasts and
their contents, and decide on measures such as banning broadcasts or imposing
monetary fines that are determined within the scope of RT Law.
The reasoning of the foregoing as explained in
negotiation process of the amendment indicates that "Due to technological developments in information technologies sector
and the widespread use of broadband internet services, radio and television
broadcasts started to gravitate to the internet. Special contents to be
broadcasted through internet are also being produced frequently. Media service
providers making licensed broadcasting through terrestrial, satellite and cable
means started to broadcasting through internet at the same time. Additionally,
many institutions that do not have a license obtained from RTUK began to
broadcasting their radio and television contents through internet without
permission.". Taking into account the reasoning and the letter of the law together,
the main purpose behind this article appears to be to regulate institutions
that are broadcasting through both conventional means and internet such Fox TV,
CNN Turk or the institutions broadcasting radio and television contents through
internet such as BluTV.
The second paragraph of Article 29/A states that, in
the event that RTUK determines that broadcasting services of real persons or
legal entities who do not have temporary broadcast right and/or broadcast
license or whose broadcasting license has been cancelled are transmitted
through internet, criminal judgeships of peace may render a decision for
removal and/or access ban of contents upon RTUK's request. While the initially
proposed version of second paragraph stated that criminal judgeships of peace
decisions shall be sent to Access Providers Union for execution, the final and published
version of Article 29/A refers to Information and Communication Technologies
Authority ("ICTA") instead of Access Providers Union. Criminal judgeship of
peace judge shall render its decision within twenty four hours at the latest,
without hearing. However, it is still possible to appeal such decisions within
the scope of provisions of the Turkish Code of Criminal Procedure. The article
also refers to third and fifth paragraphs of Article 8/A of the Law No. 5651
which requires access ban decisions to be rendered regarding specific URL
addresses and sets forth monetary fines for those who do not comply with access
ban decisions, respectively.
The newly introduced Article 29/A further states that
even if the content or hosting provider is in a foreign country, the foregoing
principles and restrictions also apply to transmission of broadcasting services
of platform operators or of media service providers that are under the
jurisdiction of another country if RTUK determines these broadcasts to be in
violation of RT Law, international treaties which the Republic of Turkey is a
party to and RTUK's assigned position; and in terms of broadcasting
institutions which broadcast in Turkish through internet targeting Turkey or in
another language but targeting Turkey and including commercial broadcasts. The
provision explicitly dictates that such entities are obliged to broadcast
license if they fall under the definition of media service operators; or
transmission authorization certificate if they fall under the definition of
platform operators.
The initial text of Article 29/A (prior to
modifications) consisted of four paragraphs. However, the latest published version
includes an additional paragraph, which is the main change that is made on the
amendment before it became effective. This additional paragraph (paragraph
four) clarifies the concerns on the scope of this regulation and states that,
notwithstanding, duties and authorizations of ICTA, individual communication
cannot be considered within the scope of Article 29/A and platforms that are
not dedicated to transmitting radio, television and on-demand broadcast
services through internet medium and real persons and legal entities who only
provide hosting services to radio, television and on-demand broadcast services
shall not be considered as platform operators within the scope of this article.
The last and fifth paragraph of Article 29/A provides
that RTUK and ICTA shall jointly issue a regulation that determines the
procedures and principles regarding presentation of radio, television and
on-demand broadcasting services through internet, transmission of such
services, broadcast license for the media service providers through internet,
broadcasting transmission authorization for platform operators, monitoring of
broadcasts and implementation of Article 29/A.
IV. Conclusion
The latest changes on the amendment certainly brought some
degree of clarity to the scope of this provision and RTUK's authority over internet
medium. Still, as the implementation and interpretation of this new article is
yet unknown, all broadcasters and platforms whose services could fall under the
scope of Article 29/A will need to assess whether this provision will be
applicable to them, whether they would need to obtain a license from RTUK and adjust
the contents of their broadcasts in line with the RT Law to avoid potential
restrictions on or penalties related to their services in Turkey.
Authors: Gönenç Gürkaynak, Esq., İlay Yılmaz and Burak
Yeşilaltay, ELIG, Attorneys-at-Law
(First
published in Mondaq on March 28, 2018)