The Radio and Television Supreme Council ("RTÜK") published the Regulation on Radio, Television and On-Demand Broadcasts on the Internet ("Regulation")1 in the Official Gazette of August 1, 2019. The main aim of the Regulation is to regulate Internet broadcasts.
The Regulation sets out the rules and procedures relating to the provision of broadcast services through the Internet, the broadcast licenses to be granted to media service providers, the broadcast transmission authority to be granted to platform operators, and the supervision of such broadcasts.
The Regulation excludes individual communications from its scope, and declares that (i) platforms that are not dedicated to the broadcasting radio, television and on-demand broadcasts through the Internet, and (ii) real persons and legal entities that only provide hosting services to radio, television and on- demand broadcast services, will not be considered or treated as "platform operators."
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 the relevant license is made to RTUK, along with a petition of request, signed license application forms drafted by RTUK, and any other necessary documents specified in Article 7 of the Regulation.
The Regulation will also be applicable for content or hosting providers located in a foreign country, media service providers that are under the jurisdiction of another country, or media service providers broadcasting over the Internet in Turkish and targeting Turkey, or broadcasting in another language but targeting Turkey and also including commercial broadcasts to Turkey.
1. Sanctions Set Out by the Regulation
In case RTÜK is notified of, or discovers ex officio, the existence of any online broadcast services that are made without a broadcast license, the finding is announced on RTÜK's website, whereby the authority puts the broadcaster on notice. This announcement informs the broadcaster that they can request a broadcast license by way of a petition and a letter of undertaking, along with payment of license fees for three months, whereupon they will be allowed to continue broadcasting while their license application is under review, and, in case of a failure to do so, an access ban request will be issued to the criminal judgeship of peace, and a criminal complaint will be filed, unless the broadcaster in question stops broadcasting within 72 hours of the announcement. If the broadcaster fails to submit the petition and the undertaking letter, and does not pay the 3-month license fees, then the access ban procedure will be initiated.
If RTÜK determines that the entities who do not possess temporary broadcast rights and/or broadcast licenses, or whose broadcasting licenses have been cancelled are providing broadcasting services through the Internet, it may apply to a criminal judgeship of peace to render a decision for removal and/or access ban of the contents of such broadcasting services. The judge will render its decision within twenty-four hours at the latest, without holding a hearing. However, it is still possible to appeal such decisions under the provisions of the Turkish Code of Criminal Procedure. The article also refers to the fifth paragraph of Article 8/A of the Law No. 5651, which requires access ban decisions to be rendered with respect to specific URL addresses (as opposed to entire websites), and also sets forth monetary fines for those parties who do not comply with access ban decisions.
Media service providers who provide their services without a license may be faced with a monetary fine ranging from 1% up to 3% of their commercial communication revenue from the previous month. Furthermore, the general manager of a non-compliant media service provider, and the members of its board of directors, may also be sentenced to imprisonment from one up to two years, and a monetary fine ranging from a thousand days up to five thousand days (i.e., between TRY 2,000 and TRY 500,000) may also be imposed.
2. Practical Effects of the Regulation
The Regulation states that broadcast services provided on the Internet under a license and/or authorization from RTÜK shall be conducted in accordance with the Regulation, which includes provisions setting forth certain requirements, restrictions and measures regarding such broadcasts and their contents. Therefore, RTÜK will be authorized to supervise such broadcasts and their contents, and empowered to decide on measures such as broadcast bans and monetary fines that are determined within the scope of the Regulation. Additionally, media service providers that are willing to broadcast their radio, television and on-demand broadcast services solely through the Internet are obliged to get a broadcast license from RTÜK, and platform operators that are willing to transmit these broadcasts on the Internet are required to obtain broadcast transmission authorization from RTÜK.
In conclusion, pursuant to the Regulation, RTÜK has been entitled and authorized to intervene in certain online broadcasts. Entities that provide radio, television and on-demand broadcasting services through the Internet will need to assess whether such services fall under the Regulation and determine whether they will need to obtain a broadcast license from RTÜK to continue their services, and they will have to adjust and modify their broadcasts according to the provisions of the Regulation in order to avoid potential restrictions or penalties.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2019. A link to the full Legal Insight Quarterly may be found here
1. See http://www.resmigazete.gov.tr/eskiler/2019/08/20190801-5.htm (last accessed on October 1, 2019).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.