The Regulation On Provision Of Radio, Television And On-Demand Broadcasts On The Internet
ADMD Law Office
İlayda Doğan
The Law No.6112 on the Establishment of Radio and Television Enterprises and Their Media Services (“Law No. 6112”) was published on the Official Gazette of March 3, 2011. Article 29 titled “Delivery of Broadcast Services from the Internet” is recently added to this Law No. 6112 as of March 21, 2018 to regulate digital tv platforms.
Therefore, ‘The Regulation on Provision of Radio, Television and On-Demand Broadcasts on Internet Medium’ is also published on the Official Gazette of August 1, 2019.
- A. THE REGULATION
The Regulation provides detailed information regarding the broadcasting services provided through the internet and required these services and their providers to be under the supervision and authority of Radio, Television Supreme Council (“RTUK”). The contents of the broadcast transmitted solely on the internet are required to comply with the measures and restrictions stipulated under Law on Radio Television Broadcasts with this regulation.
- B. EXECUTION OF THE REGULATION
The Regulation is applicable to the content or hosting providers in a foreign country, or for media service providers that are under jurisdiction of another country, or for media service providers which broadcast in Turkish through internet targeting Turkey or in another language but again targeting Turkey and Turkish audience.
In other words, foreign entities that offer on-demand broadcasts such as Netflix and Amazon Prime Video also fall into the provisions of this Regulation. Therefore, the content and hosting providers are subject to the obligations and sanctions, even if they broadcast from a foreign country.
The service providers are categorized as media service providers and platform operators as per the Regulation. The hosting providers and the individual communication providers are excluded from the execution of this Regulation.
- C. OBLIGATIONS
The Regulation notes that in order to broadcast within Turkey, the foreign entities should establish a Turkish legal entity to comply with the necessary licensing and authorization requirements.
- 1. MEDIA SERVICE PROVIDERS
The media service providers are defined as the legal entities with editorial responsibility and decision power on the content to be provided. In other words, the media service providers are the ones choosing the content to be broadcasted and provide the content as within a catalogue to the users.
Media service providers that are willing to broadcast their radio, television and on-demand broadcast services solely through the internet are obliged to obtain a broadcast license from RTUK.
1.1. BROADCAST LICENSE
The broadcast license is exclusively granted to joint stock companies established as per Turkish Commercial Code. Accordingly, a foreign company who is willing to broadcast content in Turkey is required to establish a joint stock company as per the Turkish Commercial Code.
The joint stock company to be incorporated shall fulfill the requirements below as per the Turkish Commercial Code and the Regulation;
- The company shall be established solely for the purposes of providing radio, television and on-demand broadcasting services;
- Charter capital of the company shall be minimum of TRY 500,000.-;
- Registration of its logo and/or sign to be used for broadcasting needs to be made before Turkish Patent Office (“TPE”);
- It shall appoint an individual as the audience representative;
- Pay the license fee.
Broadcasting license can be issued for 10 years for internet broadcasters.
- 2. PLATFORM OPERATORS
The platform operators are defined as the legal entities transmitting the broadcasted content through its platform. The platform operator which solely transmits the broadcasts on the internet transmits the broadcast on its own domain address or application.
The platform operators are obligated to obtain a broadcast transmission authorization from RTUK. The broadcast transmission authorization is exclusively granted to joint stock companies and limited liability companies established in accordance with the Turkish Commercial Code.
3.1. BROADCAST TRANSMISSION AUTHORIZATION
The application for the authorization shall be made to RTUK with a request petition along with the signed authorization application forms provided by RTUK and other necessary documents specified in Article 8 of the Regulation that are documents stipulating the company is duly established, including the information of the company’s authorized representatives.
- 4. LICENSE FEES
The regulation states that the fee for internet radio broadcast license fee is TRY 10,000.-; internet TV broadcast license fee is TRY 100,000.- ; and internet on-demand broadcast license fee is TRY 100,000.- per annum.
Fee for broadcast transmitting is TRY 100,000.- per annum and the platform operators shall also pay a %0,5 of their annual revenues grossed from their membership sales to RTUK every year.
- D. SANCTIONS
If media service providers or platform operators are providing their services without obtaining a broadcast license or transmission authorization, RTUK will announce this fact its website.
This announcement will be assumed as a notification to these parties and they may pay the initial fees for the first three (3) months and make their applications accordingly to continue their services until the license or authorizations are issued.
In case they fail to do so, RTUK may ban their broadcasts, issue fines and inquire for criminal investigations to be initiated before Courts.
As noted, the entities may apply for a broadcasting license or an authorization before RTUK in accordance with the Regulation and pay the fees in advance for three months.
- E. CONTENT OBLIGATIONS
The scope of the content broadcasted in Turkey is regulated in accordance with Article 8 of Law No. 6112 and the content is under supervision of RTUK. In this context, the media providers shall comply with the restrictions and abide by the principles. The principles of broadcasting service within the scope of Article 8 of Law No. 6112 are as the following:
“ARTICLE 8 – (1) Media service providers shall provide their media services in accordance with the principles under this paragraph with an understanding of the responsibility towards public.
Media services;
a) shall not be contrary to the existence and independence of the State of the Republic of Turkey, the indivisible integrity of the State with its territory and nation, the principles and reforms of Atatürk.
b) shall not incite the society to hatred and hostility by making discrimination on the grounds of race, language, religion, sex, class, region and sect or shall not constitute feelings of hatred in the society.
c) shall not be contrary to the rule of law, the principle of justice and impartiality.
ç) shall not be contrary to human dignity and the principle of respect to privacy, shall not include disgracing, degrading or defamatory expressions against persons or organizations beyond the limits of criticism.
d) shall not glorify and encourage terror; shall not display terrorist organizations as powerful or justified and shall not portray terrifying and deterrent features of terrorist organizations.
e) shall not include or promote broadcasts which make discrimination based on race, color, language, religion, nationality, sex, disablement, political and philosophical opinion, sect and any such considerations and degrade individuals.
f) shall not be contrary to the national and moral values of the society, general morality and the principle of protection of family.
g) shall not glorify committing a crime, criminals and criminal organizations, shall not be instructive on criminal techniques.
ğ) shall not comprise the abuse of children, weak and disabled people and encourage violence against them.
h) shall not encourage the use of addictive substances such as alcohol, tobacco products and narcotics or the gambling.
ı) shall be predicated on the principles of impartiality, truthfulness and accuracy and shall not impede the free formation of opinions within the society; the news that can be investigated within the framework of journalistic code of ethics shall not be broadcast without having been investigated and assured of its accuracy; in news reporting, exaggerated audio and images, any effects and music other than the natural sounds shall be avoided; the qualification of the images as an archive or a re-enactment or the source of the news obtained from the news agencies and other media sources shall be specified.
i) shall not declare or present anyone as guilty unless conclusively proven by a judicial decision; shall not be in a way to affect the trial process and its impartiality beyond its newsworthiness during the judgement process in cases that have been passed to the judiciary.
j) shall not contain any elements that serve for unfair interests and lead to unfair competition.
k) shall not be biased towards or favoring political parties and democratic groups.
l) shall not encourage any acts which might jeopardize the general health and protection of environment and animals.
m) shall ensure that the Turkish language is used in a proper, correct and intelligible way without undermining its characteristics and rules; shall not display coarse, slang and poor-quality use of the language.
n) shall not be sexually obscene.
o) shall respect the right of reply and rectification of the individuals or institutions.
ö) shall not contain any competition and lottery through the info-communications means, no prizes shall be awarded to listeners or viewers or shall not act as an intermediary for awarding prizes.
p) Surveys and public opinion polls which are conducted or commissioned by the media service provider shall be exercised in the presence of the notary from their preparatory stage until the announcement of the results.
r) shall not exploit individuals by way of fortune-telling and superstitions.
s) shall not contain any programs against the gender equality, encouraging the oppression over and exploitation of women.
ş) shall not incite violence or lead to desensitization.
t) shall not present the act of terrorism, its perpetrators and victims in a way that might lead to the results serving to the aims of terrorism.
(2) In radio and television broadcasting services, the programs, which might impair the physical, mental or moral development of minors and young people, shall not be broadcast during the time intervals they are likely to watch and without the presence of a protective symbol.
(3) On-demand media service providers shall ensure that media services, which are likely to impair the physical, mental or moral development of minors and young people, are only made available in such a way that they will not normally hear or see such services.”
Article 21 of the Regulation also specifically regulates the protection of children from some specific content:
“ARTICLE 21: (1) Media service providers that have broadcast licenses from the internet environment and internet broadcast platform operators who are authorized to transmit broadcasts are obliged to take parental control measures for broadcasts that may harm the physical, mental or moral development of children.
(2) Media service providers and internet broadcast platform operators whose broadcasting licenses are issued from the internet environment where the child cannot be a member and that service with a personalized membership system are not applicable for the protection of children in the Law No. 6112 and in this Regulation.”
If measures restricting the access of children (parental guidance, control, limitations or others) are taken by the broadcaster (even creating a membership with a credit card system may be sufficient in our opinion), in this case, they will remain out of the scope of Article 21. However, free internet broadcasters that are is easily accessible to children, should be evaluated within the scope of Article 21.
The important issue is therefore to take measures to ensure parental control for the protection of children and to interpret the scope of providers providing services with a personalized membership system that children cannot be a member of, together with Article 8 of Law No. 6112. The 2nd and 3rd paragraphs of the Article 8 of the Law are as follows:
(2) In radio and television broadcasting services, the programs, which might impair the physical, mental or moral development of minors and young people, shall not be broadcast during the time intervals they are likely to watch and without the presence of a protective symbol.
(3) On-demand media service providers shall ensure that media services, which are likely to impair the physical, mental or moral development of minors and young people, are only made available in such a way that they will not normally hear or see such services.”
Therefore, these clauses are intended for the purposes of protecting children. In this context, they will not be applied for publishers with a membership system within the framework of Article 21 of the above-mentioned Regulation.
One may also consider that some of the other provisions under paragraph (1) of the Article 8 above mentioned such as the ones against alcohol, tobacco, sexually obscene or violent content that are also mainly targeting the protection of children as per the general justification of the Law and therefore an exemption may be considered regarding the requirements for blurring of cigarettes and alcohol and/or exclusion of sex and violence containing scenes (as they are already applied currently for regular TV broadcasts). However, it is not possible to make a clear comment on this subject since there is no available application of RTUK or a Court judgment in this context.