Regulation on Provision of Radio,

Television and On-Demand Broadcasts on Internet Medium has been

published on the Official Gazette of August 1, 2019.  The main aim of the Regulation is to regulate

the internet broadcasts.

Regulation on Provision of Radio,

Television and On-Demand Broadcasts on Internet Medium ("Regulation") has been

published on the Official Gazette of August 1, 2019.  The main aim of the Regulation is to regulate

the internet broadcasts.

I. Scope of the Regulation

The amendment to the Law on Radio and

Television Broadcasts ("RT Law"), which was published in the Official Gazette

of March 28, 2018, regulated broadcasting services (i.e. radio, television and

on-demand broadcasts) provided through internet and required these services and

their providers (media service providers and platform operators) to be under

the supervision and authority of Radio and Television Supreme Council's

("RTUK"). The Regulation provides detailed information regarding this process.

The Regulation is enacted in order to

determine rules and procedures of provision of broadcast services through the

Internet, the broadcast license to be granted to the media service providers,

the broadcast transmission authority to be granted to platform operators, and

supervision of such broadcasts. The Regulation excludes individual

communication from its scope, and states that (i) platforms that are not

dedicated to transmitting radio, television and on-demand broadcast services

through internet medium and (ii) real persons and legal entities which only provide

hosting services to radio, television and on-demand broadcast services will not

be considered as "platform operators".

The Regulation further states that the Regulation

is applicable to the content or hosting providers in a foreign country, or for media

service providers that are under the jurisdiction of another country, or for

media service providers which broadcast in Turkish through internet targeting

Turkey or in another language but targeting Turkey and including commercial

broadcasts to Turkey, if RTUK determines these broadcasts to be in violation of

RT Law and international treaties.

II. Obligations Set Out by the Regulation

According to the Regulation, media service

providers that are willing to broadcast their radio, television and on-demand

broadcast services solely through internet are obliged to obtain a broadcast

license from RTUK and platform operators that are willing to transmit these

broadcasts on internet are obliged to obtain broadcast transmission

authorization from RTUK. The broadcast license is exclusively granted to joint

stock companies established as per the Turkish Commercial Code, for the purpose

of providing radio, television and on-demand broadcast services. The

application for this license is made to RTUK along with a request petition,

signed license application forms drafted by RTUK and the necessary documents

specified in Article 7 of the Regulation. The license is granted for ten years.

The media broadcast service providers'

further obligations are provided as follows:

- Keeping RTUK up to date regarding the

changes in the documents provided to RTUK,

- Complying with the obligations set out

by RT Law, which includes provisions setting forth certain requirements,

restrictions and measures regarding broadcasts and their

contents.

- Removing the on-demand broadcast

services from program catalogues which is found in violation of RT Law by RTUK.

- Providing RTUK with information on

corporate structure,

- Providing audio and image files used in

broadcast services to RTUK so that RTUK may remotely monitor the broadcasts,

and where necessary provide RTUK with membership rights, license and usage

rights to RTUK so that RTUK may record the broadcasts,

- In encrypted broadcasts, encrypting both

images and audio in a manner that these images and audio cannot be identified,

- Providing RTUK with the website

addresses that the broadcast will be made on, identification tags, addresses,

registered e-mails, names and addresses of the representatives,

- Keeping broadcast records for a year

following the broadcast,

- Providing RTUK with a copy of broadcast

record upon RTUK's request within ten days,

- If the broadcast is subject to an

investigation or prosecution, keeping the record of broadcast until the

investigation or prosecution is over,

- Using protective symbols to inform

audience on the content of programs either visually or audibly,

- Informing the program catalogues to RTUK

for on-demand broadcasts,

- Declaring commercial communication

income and paying RTUK share in this regard,

- Paying broadcast license fees.

III. Fees

Regulation states that the fee for radio

broadcast license fee from the Internet is 10,000 (ten thousand) Turkish Liras,

TV broadcast license fee from the Internet is 100,000 (hundred thousand)

Turkish Liras, and on-demand broadcast license fee from the Internet is 100,000

(hundred thousand) Turkish Liras.

Having said that, Regulation Amending the

Regulation on Procedures and Principles on Auditing Commercial Communication Revenues of Media

Service Providers and Declaration and Payment of the Supreme Council's Share was also published on the Official Gazette of, August 1,

2019. This regulation requires the media service providers holding

internet broadcasting license to declare their commercial communication

revenues.

IV. Sanctions

If RTUK finds out about broadcast services

through Internet without a broadcast license, the issue is announced on RTUK's

website and in this announcement notifies the broadcaster, informing that they

can request a broadcast license by way of a petition and a letter of undertaking,

along with a payment for license fees of three months, and an access ban

request will be issued to the criminal judgeship of peace, and a criminal

complaint will be filed, in case of failure to do so. If the broadcaster does

not provide the petition and undertaking letter, and does not pay the license

fees of three months, access ban procedure will be initiated.

If RTUK determines that broadcasting

services of entities who do not have temporary broadcast right and/or broadcast

license, or whose broadcasting license has been cancelled are transmitted

through internet, upon RTUK's request, a criminal judgeship of peace may render

a decision for removal and/or access ban of contents. The criminal judgeship of

peace judge will render its decision within twenty four (24) hours at the

latest without a 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 fifth paragraph 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.

V. Practical Effects of the Regulation

The Regulation states that broadcast

services provided on internet under a license and/or authorization from RTUK

shall be in accordance with RT Law which includes provisions setting forth

certain requirements, restrictions and measures regarding such broadcasts and

their contents. Therefore, RTUK will be authorized to monitor such broadcasts

and their contents; and decide on measures such as broadcast bans and monetary

fines that are determined within the scope of RT Law. Also, media service

providers that are willing to broadcast their radio, television and on-demand

broadcast services solely through internet would obliged to obtain a broadcast

license from RTUK and platform operators that are willing to transmit these

broadcasts on internet are obliged to obtain broadcast transmission

authorization from RTUK.

In conclusion, the RTUK will be entitled

to intervene in certain online broadcasts. Entities that provide radio,

television and on-demand broadcasting services through the internet will need

to assess whether their services fall under the Regulation and whether they

will need to obtain a license from the RTUK to maintain their services, and

they will have to adjust their broadcasts accordingly to avoid potential

restrictions or penalties.

Authors: Gönenç Gürkaynak Esq., Ceren Yıldız, Burak Yeşilaltay and

Devlet Çağla Nizam, ELIG

Gürkaynak Attorneys-at-Law

(First published by Mondaq on August 6, 2019)