Turkey: A New Era For Internet Broadcasting Services: An Amendment To The Radio And Television Legislation Which Regulates Internet Broadcasts

The expected amendment to the Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises ("RT Law"), which aims to regulate radio, television and on-demand broadcasts provided through the internet, has entered into force as of March 28, 2018. Providers of radio, television and on-demand broadcasting services through the internet and platform operators transmitting these broadcasts will be required to obtain a license from the Radio and Television Supreme Council ("RTUK") as of this date.

The amendment was introduced within the Law No. 7103 on Amending the Tax Law, Certain Laws and Certain Decrees and it introduced a new article (Article 29/A) to the RT Law, titled "Broadcasting services through the internet." Prior to Article 29/A, the RT Law was not applicable to and the RTUK did not have supervisory authority over broadcasts through the internet. Prior to the amendment, the scope of the RT Law only covered services that were provided by conventional broadcasting entities directly to customers, such as radio or television channels operating under a license obtained from the RTUK.

Per the newly added Article 29/A of the RT Law, radio, television and on-demand broadcast services provided through the internet and the providers of these services (i.e., media service providers and platform operators) will be subject to the supervision and authority of the RTUK.

The RT Law defines "media service providers" as legal entities that have the editorial responsibility to choose content for radio, television and on-demand broadcast services and who determine the means and methods of regulating and providing these services. Media service providers are obliged to obtain broadcasting licenses from the RTUK in order to broadcast by means of terrestrial, satellite and cable transmissions. RT Law also defines "platform operators" as enterprises that transform multiple media services or multiple signals into a single service or signal, and enable their transmission through satellite, cable and similar networks, either in an encoded and/or decoded form that is directly accessible by consumers. Since both definitions omit any references to internet broadcasts and only refer to means of terrestrial, satellite or cable transmissions, the RTUK did not have any authority over broadcasts through the internet under the previous legislation.

According to the first paragraph of Article 29/A of the RT Law, even if the broadcast services are only provided through the internet, media service providers who are willing to offer their radio, television and on-demand broadcast services through the internet are obliged to obtain broadcasting licenses from the RTUK. Similarly, platform operators who wish to transmit these broadcasts are obliged to obtain broadcast transmission authorizations from the RTUK as well. Article 29/A also states that media service providers that hold a temporary broadcast permit and/or license from the RTUK (i.e., radio and television channels operating under a license and/or permit issued by the RTUK) may broadcast through the internet, as long as their broadcasts are in accordance with the RT Law and also in compliance with the Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651"). In other words, the RTUK is now authorized to monitor such broadcasts and their content, and empowered to decide on measures and take various disciplinary actions, such as banning broadcasts or imposing monetary fines that are determined within the scope of RT Law.

The second paragraph of Article 29/A regulates that, if the RTUK determines that the broadcasting services of real persons or legal entities who do not hold a temporary broadcast permit and/or license or whose broadcasting license has been cancelled, are being transmitted through the internet, criminal judgeships of peace may order the removal and/or access ban of the relevant content upon the RTUK's request. While an earlier proposed version of the second paragraph stated that the decisions of the criminal judgeships of peace would be sent to the Access Providers Union for execution, the final and published version of Article 29/A refers to the Information and Communication Technologies Authority ("ICTA") as the executing authority instead of the Access Providers Union with respect to the implementation of such judicial decisions. Furthermore, criminal judgeships of peace are required to render their decisions within twenty-four hours at the latest, without holding a hearing. However, it should be noted that such decisions can still be appealed under the rules of the Turkish Code of Criminal Procedure. Finally, the article also refers to the third and fifth paragraphs of Article 8/A of the Law No. 5651, which requires access ban decisions to be applicable to specific URL addresses or limited to the part of a publication/broadcast that is in violation of the RT law (unless the access ban cannot be limited to the violating content for technical reasons or if banning the specific URL/publication/broadcast does not eliminate the violation, in which case the entire website may be access banned), and sets forth monetary fines for those who fail to comply with access ban and content removal decisions, respectively.

Another significant change that Article 29/A introduces is that the provision in question does not only target local broadcasters in Turkey, but also covers foreign media service providers and platform operators who target Turkish audiences, regardless of whether they provide their services and broadcasts in Turkish. The third paragraph of Article 29/A states that, even if the content or service provider is located in a foreign country, the foregoing principles and restrictions will be applicable. In other words, these rules and restrictions will be applicable to the transmission of broadcasting services by platform operators or by media service providers that are under the jurisdiction of a foreign country, if the RTUK determines that these broadcasts are in violation of the RT Law, of international treaties to which Turkey is a signatory, and of the assigned functions and responsibilities of the RTUK. Furthermore, they are also applicable to broadcasting institutions that (i) broadcast in Turkish through the internet in order to target a Turkish audience or (ii) whose broadcasts are in another language but aimed at Turkey and include commercial broadcasts. The new provision explicitly dictates that such entities are obliged to acquire a broadcasting license if they fall under the definition of media service operators, or a transmission authorization certificate if they fall under the definition of platform operators.

The fourth paragraph of Article 29/A clarifies certain concerns with respect to the scope of this regulation, and states that, notwithstanding the duties, powers and authorizations of the ICTA, (i) individual communications cannot be considered to fall within the scope of Article 29/A, (ii) platforms that are not dedicated to transmitting radio, television and on-demand broadcast services through the internet and real persons and legal entities who only provide hosting services to radio, television and on-demand broadcast services will not be considered as "platform operators" within the scope of this article.

The fifth and final paragraph of Article 29/A provides that the RTUK and the ICTA will jointly issue a regulation which will determine and specify the procedures and principles applicable to (i) the presentation of radio, television and on-demand broadcasting services through the internet, (ii) the transmission of such services, (iii) the broadcasting licenses for media service providers through the internet, (iv) the broadcasting transmission authorizations for platform operators, (v) the monitoring of broadcasts, and (vi) the implementation of Article 29/A.

In light of foregoing provisions of Article 29/A, it appears that the RTUK will now be entitled to intervene in certain online broadcasts. For the moment, the details of the practical implementation and interpretation of this new article is unknown, and the RTUK's further regulations and/or decisions on this matter in the forthcoming period might provide some clarity regarding the proper scope and reach of this provision. Nevertheless, entities that provide radio, television and on-demand broadcasting services through the internet will need to assess whether their services fall under this new provision and whether they will need to obtain a license from the RTUK to maintain their services targeting a Turkish audience, and they will have to adjust their broadcasts accordingly to avoid potential restrictions or penalties.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2018. A link to the full Legal Insight Quarterly may be found here.

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.

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