Online betting is one of the most popular topics in the area of commercial activities on the internet and their compliance with laws and regulations. Under Turkish law, several pieces of legislation directly pertain to online betting on sporting events, such as the Law on the Transfer of Rights to Organize Sports Betting to Private Legal Entities1 ("Law No. 5738") and the Regulation on Online Gaming,2 or else contain provisions that may relate to online betting, such as the Law on the Regulation of Internet Broadcasting and Prevention of Crimes Committed by Means of Internet Broadcasting3 ("Law No. 5651"), the Turkish Penal Code4 ("TPC") and the Misdemeanors Law.5
Initially, a clear distinction must be made between online betting and online gambling. The Misdemeanors Law prohibits any type of gambling, and any person who gambles is sanctioned with an administrative penalty and seizure of their gambling proceeds by the administrative authorities. Furthermore, the TPC bans supplying a place or opportunity for gambling or otherwise facilitating gambling, and persons violating the relevant provisions of the TPC would be subject to penalty and imprisonment.
The TPC and Misdemeanors Law make no distinction between actual gambling and online (virtual) gambling. They forbid all types of gambling, including online. In other words, individuals within the borders of Turkish jurisdiction may not gamble online. Furthermore, under Law No. 5651, if there is enough suspicion that a website is supplying a place or an opportunity to gamble, access to the relevant website is banned.
Unlike online gambling, online sports betting is allowed under very strict rules and regulations. According to the Decree on Establishment of the Turkish National Lottery,6 the Turkish National Lottery Administration ("NLA") has the monopoly authority to organize games based on luck and to promise a monetary prize to the winning participants. The NLA is also entitled to transfer licenses to organize online games based on luck for definite terms, and to control and supervise the use of such licenses in compliance with applicable law. Accordingly, Law No. 5738 was enacted in February 2008 to regulate the principles of transfer of licenses to organize bets and games of luck regarding football and other sports contests to legal entities. Without the duly obtained license, it would not be possible for local or foreign legal entities to organize online betting activities within Turkey via their own websites.
During the period when Law No. 5738 was being discussed, the NLA reportedly conducted a number of inspections of online betting and gambling websites broadcasting from foreign countries and available to individuals in Turkey. Based on the conclusions of the inspection reports, the NLA initiated a number of lawsuits against the operators of websites, claiming that the relevant websites were violating the NLA's monopoly in Turkey, requesting cessation of the violation of the monopoly, and banning access to the relevant websites.
In lawsuits finalized recently, several issues were discussed before the Court of Appeals, such as the language of broadcasting, IP number control, prevention of access from specific countries, and operators lawfully licensed in a foreign country. In its various decisions, the Court of Appeals stated in general that – among the other languages – the relevant website was also broadcasting in the Turkish language, leading to the opinion that Turkish customers were being targeted and that the operator was trying to offer betting services to individuals in Turkey. However, the relationship between the broadcasting language and the monopoly area of the NLA was not discussed.
When we consider the full extent of an administrative body's monopoly right, such monopoly would neither be limited to the territory and jurisdiction of Turkey, nor directly related to Turkish-speaking citizens. For example, an online betting website broadcasting in English would also violate Turkey's domestic legislation, whereas website broadcasting in the Turkish language would not violate the laws of the country where online betting or gambling was totally allowed. Consequently, the laws and regulations in Turkey presume to assert jurisdiction not only over the activities of "betting" or "gambling" themselves, but also over the places where such activities actually occur. The language used in such activities would not be deemed a factor in determining violation of the monopoly right. This interpretation of the Court of Appeals indicates the Turkish courts' authoritarian approach to online betting services.
The Court of Appeals also discussed the prevention of access from Turkey via IP number control and the position of the operators lawfully licensed in a foreign country. The main discussion was based on the questions of whether there would be a need to ban the relevant website as though it were conducting illegal business if the relevant website (i) was lawfully licensed in a foreign country, and (ii) accepted participants from Turkey via IP control. At this point, the Court of Appeals referred to Article 5 of the Regulation on Online Gaming, pursuant to which the operation of enterprises facilitating online gaming is prohibited and no online medium can be established to facilitate gaming. Advertisements or commercials of any party operating online gaming businesses are strictly prohibited, and there can be no advertising that is misleading or that encourages online gaming. Based on this article, the Court of Appeals affirmed the local court's ruling that the online betting website homepage itself constituted an advertisement for betting, and that access to the relevant website had to be banned.
The above evaluations of the Court of Appeals are open to discussion from many angles. However, in the application of the laws and regulations relating to online betting, the Court of Appeals prefers a conservative approach and deems illegal not only the activity of online betting but even the homepage of the website, unless such website is duly licensed as per the legislation mentioned above.
1. Law No. 5738, published in the Official Gazette dated 27 February 2008, numbered 26800.
2. Published in the Official Gazette dated 14 March 2006, numbered 26108.
3. Published in the Official Gazette dated 23 May 2007, numbered 26530.
4. Law No. 5237, published in the Official Gazette dated 12 October 2004, numbered 25611.
5. Law No. 5326, published in the Official Gazette dated 31 March 2005, numbered 25772.
6. Published in the Official Gazette dated 6 June 1988, numbered 19834.
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