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Regulation on Provision of Radio,
Television and On-Demand Broadcasts on Internet Medium has been
published on the Official Gazette of August 1, 2019. The main aim of the Regulation is to regulate
the internet broadcasts.
Regulation on Provision of Radio,
Television and On-Demand Broadcasts on Internet Medium ("Regulation") has been
published on the Official Gazette of August 1, 2019. The main aim of the Regulation is to regulate
the internet broadcasts.
I. Scope of the Regulation
The amendment to the Law on Radio and
Television Broadcasts ("RT Law"), which was published in the Official Gazette
of March 28, 2018, regulated broadcasting services (i.e. radio, television and
on-demand broadcasts) provided through internet and required these services and
their providers (media service providers and platform operators) to be under
the supervision and authority of Radio and Television Supreme Council's
("RTUK"). The Regulation provides detailed information regarding this process.
The Regulation is enacted in order to
determine rules and procedures of provision of broadcast services through the
Internet, the broadcast license to be granted to the media service providers,
the broadcast transmission authority to be granted to platform operators, and
supervision of such broadcasts. The Regulation excludes individual
communication from its scope, and states that (i) platforms that are not
dedicated to transmitting radio, television and on-demand broadcast services
through internet medium and (ii) real persons and legal entities which only provide
hosting services to radio, television and on-demand broadcast services will not
be considered as "platform operators".
The Regulation further states that the Regulation
is applicable to the content or hosting providers in a foreign country, or for media
service providers that are under the jurisdiction of another country, or for
media service providers which broadcast in Turkish through internet targeting
Turkey or in another language but targeting Turkey and including commercial
broadcasts to Turkey, if RTUK determines these broadcasts to be in violation of
RT Law and international treaties.
II. Obligations Set Out by the Regulation
According to the Regulation, media service
providers that are willing to broadcast their radio, television and on-demand
broadcast services solely through internet are obliged to obtain a broadcast
license from RTUK and platform operators that are willing to transmit these
broadcasts on internet are obliged to obtain broadcast transmission
authorization from RTUK. The broadcast license is exclusively granted to joint
stock companies established as per the Turkish Commercial Code, for the purpose
of providing radio, television and on-demand broadcast services. The
application for this license is made to RTUK along with a request petition,
signed license application forms drafted by RTUK and the necessary documents
specified in Article 7 of the Regulation. The license is granted for ten years.
The media broadcast service providers'
further obligations are provided as follows:
– Keeping RTUK up to date regarding the
changes in the documents provided to RTUK,
– Complying with the obligations set out
by RT Law, which includes provisions setting forth certain requirements,
restrictions and measures regarding broadcasts and their
contents.
– Removing the on-demand broadcast
services from program catalogues which is found in violation of RT Law by RTUK.
– Providing RTUK with information on
corporate structure,
– Providing audio and image files used in
broadcast services to RTUK so that RTUK may remotely monitor the broadcasts,
and where necessary provide RTUK with membership rights, license and usage
rights to RTUK so that RTUK may record the broadcasts,
– In encrypted broadcasts, encrypting both
images and audio in a manner that these images and audio cannot be identified,
– Providing RTUK with the website
addresses that the broadcast will be made on, identification tags, addresses,
registered e-mails, names and addresses of the representatives,
– Keeping broadcast records for a year
following the broadcast,
– Providing RTUK with a copy of broadcast
record upon RTUK's request within ten days,
– If the broadcast is subject to an
investigation or prosecution, keeping the record of broadcast until the
investigation or prosecution is over,
– Using protective symbols to inform
audience on the content of programs either visually or audibly,
– Informing the program catalogues to RTUK
for on-demand broadcasts,
– Declaring commercial communication
income and paying RTUK share in this regard,
– Paying broadcast license fees.
III. Fees
Regulation states that the fee for radio
broadcast license fee from the Internet is 10,000 (ten thousand) Turkish Liras,
TV broadcast license fee from the Internet is 100,000 (hundred thousand)
Turkish Liras, and on-demand broadcast license fee from the Internet is 100,000
(hundred thousand) Turkish Liras.
Having said that, Regulation Amending the
Regulation on Procedures and Principles on Auditing Commercial Communication Revenues of Media
Service Providers and Declaration and Payment of the Supreme Council's Share was also published on the Official Gazette of, August 1,
2019. This regulation requires the media service providers holding
internet broadcasting license to declare their commercial communication
revenues.
IV. Sanctions
If RTUK finds out about broadcast services
through Internet without a broadcast license, the issue is announced on RTUK's
website and in this announcement notifies the broadcaster, informing that they
can request a broadcast license by way of a petition and a letter of undertaking,
along with a payment for license fees of three months, and an access ban
request will be issued to the criminal judgeship of peace, and a criminal
complaint will be filed, in case of failure to do so. If the broadcaster does
not provide the petition and undertaking letter, and does not pay the license
fees of three months, access ban procedure will be initiated.
If RTUK determines that broadcasting
services of entities who do not have temporary broadcast right and/or broadcast
license, or whose broadcasting license has been cancelled are transmitted
through internet, upon RTUK's request, a criminal judgeship of peace may render
a decision for removal and/or access ban of contents. The criminal judgeship of
peace judge will render its decision within twenty four (24) hours at the
latest without a hearing. However, it is still possible to appeal such
decisions within the scope of provisions of the Turkish Code of Criminal
Procedure. The article also refers to fifth paragraph of Article 8/A of the Law
No. 5651 which requires access ban decisions to be rendered regarding specific
URL addresses and sets forth monetary fines for those who do not comply with
access ban decisions, respectively.
V. Practical Effects of the Regulation
The Regulation states that broadcast
services provided on internet under a license and/or authorization from RTUK
shall be in accordance with RT Law which includes provisions setting forth
certain requirements, restrictions and measures regarding such broadcasts and
their contents. Therefore, RTUK will be authorized to monitor such broadcasts
and their contents; and decide on measures such as broadcast bans and monetary
fines that are determined within the scope of RT Law. Also, media service
providers that are willing to broadcast their radio, television and on-demand
broadcast services solely through internet would obliged to obtain a broadcast
license from RTUK and platform operators that are willing to transmit these
broadcasts on internet are obliged to obtain broadcast transmission
authorization from RTUK.
In conclusion, the RTUK will be entitled
to intervene in certain online broadcasts. Entities that provide radio,
television and on-demand broadcasting services through the internet will need
to assess whether their services fall under the Regulation and whether they
will need to obtain a license from the RTUK to maintain their services, and
they will have to adjust their broadcasts accordingly to avoid potential
restrictions or penalties.
Authors: Gönenç Gürkaynak Esq., Ceren Yıldız, Burak Yeşilaltay and
Devlet Çağla Nizam, ELIG
Gürkaynak Attorneys-at-Law
(First published by Mondaq on August 6, 2019)