Turkey: Broadcasting Legislation

The jurisdictional clauses of the European Convention on Transfrontier Television (the "Convention") and Turkish Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises ("RT Law") overlap, potentially subjecting broadcasters transmitting or retransmitting their broadcasts into Turkey to two mutually exclusive jurisdictional schemes at once. The Turkish Radio and Television Supreme Council ("RTUK"), which is in charge of enforcing the latter law, issued the Directive on Radio and Television Broadcasts of Foreign Origin (the "Directive") in April 2012 with the explicit purpose of spelling out its interpretation of the jurisdictional clause of the domestic law as pertains to this point, but this has not helped resolve the issue. The domestic legislation should be clarified, and it should be interpreted in line with Turkey's international treaty obligations. Doing so would help achieve the broader goals of freedom of expression and integration with the European community, and also avoid allegations that Turkey has interpreted its international commitments to expand the range of its long-arm jurisdiction.

The member States of the Council of Europe signed the Convention on May 5, 1989 in order to "further the right, regardless of frontiers, to express, to seek, to receive and to impart information and ideas whatever their source." The Convention establishes a set of minimum standards that every broadcaster operating out of any of the signatories must follow, and guarantees the free retransmission of broadcasts meeting such common criteria within the remaining signatories. Turkey has signed and ratified the Convention, which has been in force in Turkey since May 1, 1994.

The Convention establishes a cascading set of principles to determine whose jurisdiction applies to any given broadcaster by evaluating the broadcaster's connection to each of its signatories through a set of progressively looser criteria of relatedness. As soon as the broadcaster satisfies one of these tests for any of the signatories, the broadcaster is made subject to that signatory's jurisdiction, and that signatory is charged with the application of the Convention. The purpose of these cascading principles is to ascertain which of the signatory States has the strongest connection to any given broadcaster, and to subject the broadcaster to the jurisdiction of that signatory. The Convention also gives signatory nations the authority to apply additional, more restrictive standards to broadcasters that are subject to their jurisdiction.

On 15 February 2011, the Turkish Parliament passed the RT Law, which set down a set of minimum standards which Turkish broadcasters must obey.

The RT Law does impose on broadcasters subject to Turkish jurisdiction more onerous obligations than those defined under the Convention, as the Convention explicitly allows. The RT Law also seemingly establishes the same criteria as the Convention for determining which broadcasters would be subject to Turkish jurisdiction, by tracking the language of the Convention's jurisdictional clause almost verbatim. However, the RT Law's jurisdictional clause might operate differently in effect, and subject to Turkish jurisdiction a much wider swath of broadcasters than the application of the Convention's language would.

It is a seeming omission in the RT Law's drafting that causes this curious effect: What the RT Law does is track very closely the Convention's Article 5(3), and subject to Turkish jurisdiction every possible broadcaster that the Convention itself would recognize to be subject to Turkish jurisdiction. This much is not controversial. However, the RT Law omits to say that if a broadcaster meets the criteria listed in Article 2 for another signatory to the Convention, it would be subject to that country's jurisdiction to the exclusion of Turkish jurisdiction. Thus, depending on how RTUK interprets and implements this clause, the RT Law might have the effect of going through the Convention's cascading criteria to subject to Turkish jurisdiction, at one step of the analysis or another, any broadcaster that has even the remotest connection to Turkey, regardless of how strong a connection the broadcaster may have to another signatory to the Convention.

Thus, under the RT Law's scheme, there is no difference whether a broadcaster has the strongest of connections to Turkey or the weakest; if the broadcaster is caught at any stage of the analysis, it becomes subject to Turkish jurisdiction. Of course the cascading method of determining jurisdiction makes sense only if there is a horizontal comparison of jurisdictions at each step; it makes no sense to use cascading criteria if only a single jurisdiction is being evaluated and there will be no difference whether a positive jurisdictional outcome is obtained at the first step or the last. The latter effect can be achieved much more naturally through a much

simpler structure. This idea suggests to us that it was an omission in the drafting of the RT Law that has caused the generously "inclusive" effect.

The RTUK, which is charged with enforcing the RT Law, issued the Directive to partially clarify the confusion created by this structure. Unfortunately, the Directive has served more to expose the confusion in the enforcement authority about the RT Law's jurisdictional reach than to explain RTUK's interpretation for industry participants. To begin with, the Directive begs the jurisdictional question by claiming to apply to all broadcasters that are under Turkish jurisdiction as determined by an application of the RT Law. The only substantive contribution made by the Directive is that it subjects to Turkish jurisdiction any broadcaster which would have otherwise been subject to the jurisdiction of another country, but which takes its broadcast into that foreign country and modifies it by "inserting additional programming, including commercial communications programming, and rebroadcasts such programming through satellites and/or cable networks owned by the Republic of Turkey." Such a rebroadcast would not be protected by the Convention in any event, because it guarantees only the "complete and unchanged" retransmission of broadcasts that meet its criteria; once the broadcast is modified in that fashion, it can no longer be considered "complete and unchanged" and RTUK would fully be in the right to subject it to Turkish jurisdiction and to expect it to abide by any other restrictions that the Turkish government might see fit to apply to it.

The Directive essentially holds that the RTUK may regulate any broadcaster using satellites and/or cable networks that are owned by the Republic of Turkey if that broadcaster aims its broadcasts at Turkey, or modifies its broadcasts to insert advertising. But this contribution does not resolve the jurisdictional question one way or the other; both of these exceptions are arguably allowed under the Convention regardless of whether Turkish jurisdiction applies. As for the former, under Article 24bis of the Convention, broadcasts that are aimed at Turkey but are set up so as to be subject to another signatory's jurisdiction may be considered to constitute an abuse of the rights conferred under the Convention, albeit under the scheme of the Convention an arbitral tribunal, not the interested regulatory body, would make the call as to whether an abuse has occurred. As for the latter, and as mentioned above, broadcasts that are modified through the insertion of advertising may fail to qualify as bona fide retransmissions and may slip out of the protection of the Convention altogether.

Furthermore, even though the Directive seemingly takes as its cornerstone the use of Turkish infrastructure when deciding when the exercise of Turkish jurisdiction would be proper, this factor alone would not conclude the analysis under the Convention. Interestingly, the initial version of the Convention allowed signatories to apply stricter rules than those provided for in the Convention to "programme services transmitted by entities or by technical means within their jurisdiction" (emphasis added), but an amendment protocol in 1998 changed that language to allow the application of stricter rules only to "programme services transmitted by a broadcaster deemed to be within [the relevant country's] jurisdiction." This change strengthens the view that the mere use of technical facilities within a country's territory does not give that signatory the right to exercise jurisdiction over the broadcaster.

As can be seen from the foregoing, the Directive still does not resolve the jurisdictional dilemma created by the RT Law. Under a literal interpretation of the RT Law, broadcasters might find themselves subject to the jurisdiction of Turkey at the same time that they are subject to the jurisdiction of another Convention signatory. This outcome would clearly run counter to the purpose of the Convention, which tries to assign jurisdiction to the single signatory that has the strongest connection to the broadcaster. This purpose is evident from the Convention's intricate jurisdictional assignment scheme; it also aligns with the Convention's general purpose to facilitate the free transmission of ideas that satisfy a set of basic criteria. To allow for multiple sovereigns to exercise jurisdiction over a broadcaster would be to allow a one-way ratchet to operate against freedom of expression by effectively applying to programs broadcast into multiple jurisdictions the tightest set of restrictions found in any of its recipients.

Thus, the two texts remain in conflict. As a matter of Turkish domestic law, under Article 90 of the Constitution, properly ratified international treaties, like the Convention, carry the power of properly passed laws. But Article 90 holds international treaties immune from challenge on the basis of unconstitutionality, and for that reason international treaties are considered to be superior to ordinary legislation. However, the consequences of the enactment of a law that conflicts with obligations under international treaties are unclear in practice. Turkish case law suggests that a broadcaster whose rights are infringed by the RT Law in violation of the Convention may theoretically be entitled to demand the rescission of the law on the grounds that it is irreconcilable with Turkey's international obligations. However, the practical application of the Convention across the continent suggests that signatories routinely interpret their local legislation in a way to expand their jurisdiction, and that the supremacy of the Convention in reality is not asserted at the expense of local legislation.

The uncertainty in the jurisdictional battle between the Convention and the RT Law should be resolved authoritatively one way or the other. This resolution could come in the form of an interpretive statement issued by RTUK along the same lines as the Directive discussed above, a court ruling, or an act of Parliament. The RT Law's jurisdictional clauses should be interpreted in line with the Convention in order to avoid conflict with Turkey's international obligations. The RT Law and RTUK's interpretation of it give the appearance of attempting a naked power grab in the form of extending Turkish jurisdiction at the expense of Turkey's Convention counterparties. The sooner that the law is clarified, the easier it will be for foreign broadcasters to chart their course of action with respect to the Turkish media market.

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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