Turkey: New Era For Online Broadcasting In Turkey: Turkish Radio And Television Supreme Council Is Now Authorized To Supervise Online Broadcasting Providers

Regulation on Online Radio, Television and On-Demand Broadcasts ("Regulation") which sets out the procedures and principles for granting broadcasting licenses and authorization for broadcast transmission and inspection of such streaming services has been published in the Official Gazette on 01.08.2019.

Who does the Regulation apply to?

The Regulation shall apply to the online radio, television and on-demand broadcasting services and private media service providers providing such services and platform operators transmitting such broadcasts.

Without prejudice to the authority of the Radio and Television Supreme Council ("RTUK"), Article 4 of the Regulation states that individual communication services shall not fall within the scope of the Regulation. It also stipulates that the platforms that are not allocated for such online services and real persons and legal entities that are solely hosting providers shall not be considered as platform operators under the Regulation.

Licensing and Authority for Broadcast Transmission

Media service providers having temporary broadcasting right and/or broadcasting license may provide their broadcasting/streaming services by using such rights and licenses in accordance with the Law No. 6112 on the Establishment of Radio and Television Enterprises and their Media Services ("Law No. 6112"), the Law No. 5651 on the Regulation of Broadcasts via Internet and Prevention of Crimes Committed through Such Broadcasts ("Law No. 5651") and the Regulation.

However, media service providers wishing to provide such services through only internet shall be obliged to obtain an online broadcasting license from RTUK.

Media service providers meeting the requirements set out under the Regulation shall be granted INTERNET-RD, INTERNET-TV or INTERNET-IBYH licenses depending on whether they request to provide online radio, television or on-demand broadcasting services respectively.

In similar to the Law No. 6112, the Regulation states that each media service provider may only provide one online radio, television and on-demand broadcasting license and shall be obliged to obtain a separate license for each broadcasting type. In case the media service provider wishes to broadcast also through satellite, cable or terrestrial channels, it must obtain a separate appropriate license for each type of broadcasting.

The platform operators wishing to transmit online radio, television and on-demand broadcasts must obtain the authorization for the broadcast transmission from RTUK. The entities meeting the requirements set out under the Regulation shall be granted the authorization for online broadcasting transmission in order for them to operate as online broadcasting platform operators.

It is important to note that the Regulation shall also apply to (i) the online broadcasting transmissions of broadcasting services carried out by media service providers or platform operators under the jurisdiction of a third country broadcasting in a manner that violates the international treaties that fall under the jurisdiction of RTUK and Law No. 6112 and (ii) online broadcasts in Turkish aimed at the audience in Turkey or allocating commercial communication publications aimed at the audience in Turkey even though the broadcast is in a foreign language. The Regulation emphasizes that such organizations must obtain online broadcasting licenses and the platform operators must obtain the authorization for online broadcast transmission from RTUK in order to continue to provide their online broadcasting services.

What is the situation of the media service providers that currently have broadcasting right or broadcasting license?

As per the Article 6 of the Regulation, the media service providers that currently have the temporary broadcasting right and/or broadcasting license and the organisations that will obtain terrestrial, satellite or cable (apart from the cable broadcasting licenses valid for only one city) broadcasting licenses may carry out online broadcasting limited to the validity period of their licenses and provided that they notify RTUK about the URL address that they will broadcast through and/or their platform operators that will transmit their broadcasting and that they are registered by RTUK.

In case such media providers wish to provide online radio and television broadcasting services, they must simultaneously broadcast the same content without making any changes on the content. In similar, they must provide their on-demand broadcasting services based on the same programme catalogue.

How to apply for an online broadcasting license and the authorization for online broadcasting transmission?

First, it should be noted that online broadcasting licenses may only be granted to joint stock companies established under the Turkish Commercial Code with the sole purpose of providing online radio, television or on-demand broadcasting services. In other words, global media service providers that do not have a joint stock company in Turkey are not able to provide online broadcasting services in Turkey. Applications for online broadcasting licenses shall be made by filling out the application forms for online broadcasting licenses and submitting a petition together with the following documents:

  • Articles of Association of the Company and Turkish Trade Registry records showing the amendments thereto, if any,
  • Accountant report showing that the minimum capital share, which is TRY 50,000, has been paid,
  • National ID numbers, residential information and statements on having no criminal record of shareholders, board of managers members, general manager and responsible manager and vice general manager if exists, or notarized passport copy for the foreigners,
  • Board of managers decision on the logo and/or call sign to be used and documents showing the legal ownership of such or application documents for such logo and/or call sign, and
  • Signature circulars of the company representatives.

Submitting the said petition and application forms would be adequate for the media service providers having the temporary broadcasting right and/or broadcasting license for broadcasting through other environments apart from the online broadcasting services set out under the Article 6 of the Regulation.

In case the media service providers having the temporary broadcasting right and/or broadcasting license wishes to broadcast the visual/audio content included in their broadcasting streaming charts from their archive not simultaneously, they must obtain an online on-demand broadcasting license.

Unlike the online broadcasting license, the authorization for online broadcast transmission may also be granted to limited liability companies established under the Turkish Commercial Code in addition to joint stock companies. It is also not necessary to be authorized to provide electronical communications services for being granted the authorization for online broadcast transmission.

The applications for online broadcast transmission shall be made by submitting the application forms together with the following documents:

  • Articles of Association of the Company and Turkish Trade Registry records showing the amendments thereto, if any,
  • National ID numbers, residential information and statements on having no criminal record of shareholders, board of managers members, general manager and vice general manager if exists, or notarized passport copy for the foreigners,
  • Signature circulars of the company representatives
  • Information and documents regarding the conditional access system

Providing false or misleading information or documents will not only lead the invalidity of the application or the cancellation of the accepted applications but also be subject to criminal sanctions.

What if media service providers provide online broadcasting services without obtaining an online broadcasting license?

As per the Article 10 of the Regulation, in case RTUK detects such situation, it shall announce the situation on its official website and warns the media service provider that:

  1. It may continue to provide broadcasting services for three months by applying for an online broadcasting license together with submitting the letter of undertaking and paying the license fee for three months' in advance,
  2. In case the procedure for granting the license could not be completed, it may provide such broadcasting services for further three months by paying the calculated license fee for this period in advance,
  3. In case it fails to follow this procedure and does not cease broadcasting, RTUK will apply to the criminal court of peace with the request of access denial and will file a criminal complaint before the public prosecutor.

In case the media service provider does not apply for an online broadcasting license even upon the warning, RTUK will apply to the criminal court of peace with the request of access denial and will file a criminal complaint against the real persons and the board of managers members and general manager of the legal entities providing such broadcasting services.

Therefore, it is crucial to fully comply with the Regulation in order to not to face criminal sanctions even personally.

Pursuant to the Article 11 of the Regulation, the abovementioned procedure shall apply for providing broadcasting services without obtaining the authorization for online broadcast transmission apart from the criminal complaint.

Fees, Duration and Renewal of the License and the Authorization for Broadcast Transmission

a) Fees

The license fees set out under the Article 12 of the Regulation are TRY 10,000 for INTERNET-RD License and TRY 100,000 for INTERNET-TV and INTERNET-IBYH Licenses. Such fees shall be the five times the abovementioned fees for thematic broadcasting services concerning online tele shopping.

The media service providers providing their services in consideration of a subscription fee and through conditional access shall pay 0,5% of their annual net sales to RTUK until the end of April of the following year.

The license fees may be paid in instalments or in advance. Media service providers wishing to pay such fees in instalments must provide RTUK with cash deposit or a ten years' letter of guarantee for in accordance with the sample of RTUK in the amount of six instalments.

The annual fee for the authorization for online broadcasting transmission is TRY 100,000. In addition to this fee, online platform operators providing conditional access shall also be obliged to pay 0,5% of their annual net sales to RTUK until the April of the following year. In case the authorization is granted in any time of a year, the fee shall be calculated pro-rata considering the rest of the year. The abovementioned guarantee is in the amount of four instalments for the authorization for online broadcasting transmission.

Both fees shall be increased each year in accordance with the re-evaluation rate announced each year and be applied as of the January of the following year. New fees shall be announced on the official website of RTUK.

b) Duration and Renewal

The duration of online broadcasting licenses shall be commenced as of the date of the preparation of the licenses and such licenses shall be renewed for ten years. The renewal request must be submitted at least two months before the expiration date of the license and it is not necessary to submit another letter of guarantee in case the media service provider wishes to pay the fee in instalments.

What Obligations Does the Regulation Impose on Media Service Providers and Online Broadcasting Platform Operators?

a) Obligations of Media Service Providers

Pursuant to the Article 16 of the Regulation, media service providers granted online broadcasting license shall be responsible for the below obligations:

  • Keeping RTUK up to date regarding the information and documents previously provided,
  • Complying with the relevant legislation regarding broadcasting including Law No. 5651 and Law No. 6112 and international treaties that Turkey is a party to,
  • Excluding on-demand broadcast services that are found inappropriate by RTUK under the Law No.6112 from the program catalogue,
  • Providing all information and documents requested by RTUK regarding corporate structure, programs, its platform operators and number of the users that are provided with conditional access,
  • Granting requested number of subscriptions together with necessary software and hardware and all kind of licensing and using rights to RTUK in order for visual and audio content to be subject to remote monitoring and registered to the RTUK's registration system where necessary, to the end that RTUK is ensured to track and evaluate the broadcasting services,
  • Encrypting both visual and audio content in encrypted broadcasts,
  • Notifying RTUK on the website that broadcasting services are provided through, web masthead, address and registered electronic mail address, names and contact details of responsible manager and audience representative and all changes on them,
  • Storing broadcasting records for one year as of the broadcast date,
  • Providing RTUK with the requested broadcasting record within ten days as of the date of the request,
  • In case the broadcast is subject to any investigation or prosecution, storing such broadcast records until it is informed in writing by relevant authorities that such proceedings are finalized,
  • Informing the audience on the program content vocally or in writing by using the protective symbol system,
  • Notifying RTUK on program catalogues as to on-demand broadcasts,
  • Notifying RTUK on commercial communications income and paying the responding RTUK contribution fee,

It should be noted that license cancellation, program interruption and broadcast interruption sanctions imposed due to the broadcast content shall be applied to all transmission environments where the media service provider broadcasts through.

b) Obligations of Online Broadcasting Platform Operators

As per the Article 17 of the Regulation, online broadcasting platform operators shall be under the following obligations:

  • Keeping RTUK up to date regarding the information and documents previously provided,
  • Complying with the relevant legislation regarding broadcasting including Law No. 5651 and Law No. 6112 and Regulation on Administrative and Financial Conditions and international treaties that Turkey is a party to,
  • Not transmitting broadcasts of the media service providers that do not have a valid broadcasting license,
  • Providing services to media service providers fairly and non-discriminatively,
  • Notifying RTUK on the number of users that are provided with conditional access at the beginning of each December and when requested,
  • Upon request of RTUK, providing RTUK with the transmitted broadcasts in a way that enables them to be registered within the RTUK's system, granting requested number of subscriptions together with necessary software and hardware to RTUK,
  • Enabling RTUK to carry out remote monitoring of the visuals and audios used in broadcasts and to register them within the RTUK's system where necessary,
  • Notifying RTUK on name, address, telephone number, logo, license type and the language and jurisdiction of the license of the media providers whose broadcasts are transmitted at the beginning of each October and any changes on them within one month as of the date when change occurred at the latest,
  • Notifying RTUK on website, web masthead, address and registered electronic e-mail addresses and any changes on them and publishing them on their websites,

The Regulation took into account the competition concerns and stipulated that online broadcasting platform operators shall prepare their lists in accordance with competition principles and then submit such lists for the approval of RTUK.

Online broadcasting platform operators shall cease transmitting the broadcasts of the media service providers not having a valid online broadcasting license or broadcasting in a manner that violates the international treaties falls under the scope of the jurisdiction of RTUK and Law No. 6112 under the jurisdiction of a third country following the decision of the RTUK.

Authorization for transmission of platform operators that fail to fulfil their obligations under the Regulation shall be cancelled and such cancellation shall be notified to Information and Communication Technologies Authority.

Administrative and Judicial Sanctions

The Regulation mainly sets out the sanctions as the cancellation of online broadcasting licenses and removal of the content and/or access denial and criminal complaint as sanctions.

a) Cancellation of online broadcasting licenses

Pursuant to the Article 18 of the Regulation, media service providers losing any of the qualifications that must be met for obtaining a broadcasting license and failing to notify RTUK on the information stated under the Article 6 of the Law No. 6112 and to publish them on their websites shall be granted thirty days to meet such requirements. In case the requirements are not met within the granted period, RTUK will cease the broadcasts of the media service provider for a period of three months. If the requirements are not met even after such period, online broadcasting license of the media service provider will be cancelled.

Online broadcasting licenses of media service providers that cannot provide such online services due to force majeure or any reasons that would be accepted by RTUK may be cancelled upon request of the media service providers. It should be noted that license fees may be returned for only the cancellation due to such reasons and the returnable fee would be calculated on a pro-rata basis considering the rest of the validity period of the license.

b) Removal of the content and/or access denial and criminal complaint

As for the online broadcasting services violating the Regulation, the Article 19 first refers to the procedure set out under the Article 10 which we explained above.

However, the Regulation also stipulates that it is not required to follow this procedure as to the online broadcasting services provided by media service providers whose temporary broadcasting right and/or license is cancelled and that RTUK shall request the criminal court of peace to remove the content and/or block access and file a criminal complaint against the relevant real persons and board of managers members and general manager of the legal entity.

Whereas access denial decisions shall only apply to the violating part of the broadcast (in the form of URL or such) in theory, criminal courts of peace may grant access denial decisions covering the entire website in case it is technically not possible to block access to the violating content or blocking access to such content would not be adequate to prevent the violation.

Online Broadcasting Services Currently Provided

Provisional Article 1 of the Regulation allows media service providers having the temporary broadcasting right and/or broadcasting license obtained from RTUK pertaining to terrestrial, satellite, cable or other environments and providing such broadcast through internet may continue their online broadcasting services provided that they apply to RTUK together with the documents requested for the online broadcasting license applications within one month as of the publication date of the Regulation, i.e. 01.08.2019.

Real and legal persons currently providing online radio, television and on-demand broadcasting services without a temporary broadcasting right and/or broadcasting license may continue to provide their broadcasting services until the finalization of the application which must be made within one month as of the publication date of the Regulation as well. In case the media service provider fails to apply for an online broadcasting license within this period or fails to provide missing information within the specified period granted by RTUK, RTUK shall apply to criminal court of peace with the request of removal of content and/or access denial for the relevant broadcast. It shall also file a criminal complaint against the infringing real persons and board of managers members and general manager of infringing legal entities.

This one month' period and the procedure shall also apply to online broadcasting platform operators currently providing online broadcast transmission. However, RTUK may not file a criminal complaint against the representatives of such platform operators.

Articles 10 and 11 of the Regulation on online broadcasting services without an online broadcasting license or authorization for broadcast transmission shall enter into force on 01.09.2019, while the rest of the Regulation has become effective immediately as of the publication date.

Conclusion

The Regulation brought a new era on online broadcasting services in Turkey. Given that the Regulation stipulates both administrative and criminal sanctions, we believe it is crucial for online media service providers to fully comply with the Regulation. It is also important for online media service providers currently providing online broadcasting services not to miss the deadline for applications in order to continue providing such services uninterrupted.

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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