Recently, Omnibus Law (Law), numbered 7103, brought certain new rules regarding the supervision authority of the Radio and Television Supreme Council (RTUK) on broadcasting services provided through the Internet. Law introduced a general principles on obtaining license / permission for radio, television and on-demand broadcasting services through the Internet and the supervision of such services. The detailed procedures for the application to such rules and principles will be issued by the regulations to be published.
Such rules and principles set out that the media service providers offer radio, television and on-demand broadcast services only on the Internet shall obtain broadcasting license, and the platform operators transmit such broadcasts via Internet shall obtain broadcasting transmission license. Both licenses should be obtained from RTUK. In addition, it has been designated that media service providers offer their services off-line with temporary broadcasting authority and / or broadcasting licenses obtained from RTUK, may offer their services online with such authority and licenses. For example, a media service provider which received the required licenses from RTUK may broadcast on the Internet based on this license, however the others may only carry out related broadcasting activities by obtaining above licenses and permissions from RTUK. In this context, on-demand broadcasting platforms such as Netflix, Puhu TV and Blu TV have been obliged to obtain the required permission from RTUK.
In case the media service providers and platform operators under the jurisdiction of another country decide to offer their broadcast services on the Internet, within this scope, in practice the consequences of including such foreign providers and operators in the supervision of RTUK and most importantly applying the license / permission conditions of RTUK to them are in question.
So, what about the real or legal persons broadcasting on the Internet without obtaining a license? There is a sanction against such providers in the Law. According to the sanction; if it is determined that the transmission of online broadcasting services of real and legal persons do not have a temporary broadcasting authority and/or broadcasting license or whose right and / or the license has been canceled from RTUK; on the request of the RTUK, it may be decided by the criminal courts of peace to remove the content and/or to prevent access to the contents. This decision is sent to Access Providers Union (BTK) for execution. Legal Experts argue that it is a necessity to be careful and attentive in the application of such sanction, since the criminal courts of peace may decide with the application of RTUK and without hearing, due to it could create intervention to the fundamental rights and freedoms set forth in the European Convention on Human Rights and the Constitution. It has been tried to redress the balance in Law by granting the right of objection against the decision of the criminal courts of peace under Criminal Procedure Code.
In addition, the relevant real or legal persons broadcasting on the Internet must compy with the Internet Law No. 5651 and Law numbered 6112 on the principles of radio and television broadcasts. In this context, it should be noted that RTUK's supervision authority relating the television and radio has been extended to cover Internet broadcasting.
With this regard, it is important to ensure that exercising of such broad authority brought to RTUK shall not violate the constitutional fundamental rights and liberties; the freedom of speech, thought and information which are guaranteed in Constitution and many national/ international legislations. In addition, it should not be implemented in a way leads to "censorship" and causes arbitrary treatments to the individuals.
By the arrangement; it is stated that RTUK has no authority to control over the broadcasts and contents of the individuals who provide contents personally on the Internet, and therefore communications between individuals are excluded from the scope of the Law. In this context, it is important to identify the definition of individual communication and specify its limits in the regulations to be published for determining the scope of the RTUK's authorization.
Originally published April 2018
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.
