Source: US Global Legal Monitor
(Aug. 20, 2019) The government of Turkey published a regulation in the Official Gazette on July 1, 2019, which provides for a new framework for the licensing of radio and audiovisual transmissions made on the internet. The new regulation, the Regulation on the Transmission of Radio, Television, and On-Demand Services on the Internet, was prepared on the basis of article 29/A of the Law on the Establishment and Broadcasting Services of Radios and Televisions (Law No. 6112), which was added to the Law by an amendment on March 21, 2018.
Scope of Licensing Requirement
The Regulation requires media service providers and internet transmission platform operators that wish to provide radio or audiovisual services on the internet to obtain a license or authorization from the Radio and Television Supreme Council (RTSC) according to the type of service they provide.
The Regulation defines a “media service provider” as a legal person that has editorial responsibility in the selection of content and determines the arrangement and format of the transmission (art. 4(1)(r)), whereas “internet transmission platform operator” is defined as an establishment that makes available to users “numerous” radio, television, and/or on-demand audiovisual media services through its own URL address and/or via mobile applications in a manner that can be accessed through integrated television receivers, computers, smart phones, tablets, or similar devices (art. 4(1)(m)). The Regulation does not apply to internet service providers that provide only hosting for such services (art. 2(2)c)).
According to article 5(3), media service providers must obtain at least one of the three different types of “broadcasting licenses” for online radio, television broadcasting, and on-demand audiovisual media services, respectively, to continue the online provision of relevant services. Article 5(6) provides for an “internet broadcasting transmission authorization,” which must be obtained by internet transmission platform operators that wish to transmit radio, television broadcasting, and on-demand audiovisual media content on their platforms.
Article 5(8) provides that the relevant provisions of the Regulation apply to transmissions of radio and audiovisual media services made on the internet that “are in the Turkish language and are directed at Turkey,” or “are commercial in nature and are directed at Turkey despite not being in the Turkish language.” Media service providers and internet transmission platform providers that wish to provide such transmissions are required to obtain a license to continue providing these services in Turkey.
Transmissions found to be in violation of relevant provisions of international treaties in which Turkey takes part or are in violation of the provisions of the Law No. 6112 are also subject to the provisions of the Regulation, even if the content provider or the hosting service provider is located outside of Turkey and the media service provider or the internet transmission platform provider falls under the jurisdiction of a foreign country.
To obtain a broadcasting license, the applicant must be a joint-stock company incorporated under Turkish law (art. 7(1)). To obtain an internet broadcasting transmission authorization, the applicant may be a joint-stock company or a limited-liability company registered under Turkish law (art. 8(1)).
Applicability of Rules Regarding Protection of Minors to Content Transmitted via the Internet
Article 22 requires licensed media service providers and authorized internet transmission platform operators to implement necessary measures to enable parental control regarding content that might harm the physical, mental, or moral development of minors. Services that use individual membership systems to which minors cannot access are exempted from the minor-protection rules of the Regulation and Law No. 6112 (Reg. art. 22(2)).
Licenses cost 10,000 Turkish lira (TRY) (about US$1,785) for internet radio transmission, TRY100,000 for internet television broadcasting, and TRY100,000 for on-demand services. Licenses are valid for 10 years. Media service providers that provide users with services for a fee and/or offer conditional access implemented by technical measures that require subscriptions or other types of preauthorization are required to make a yearly payment equal to 0.5% of their annual net sales to retain their licenses (art. 12).
The fee for obtaining an internet broadcasting transmission authorization is TRY100,000, and the authorization is valid for one year. Internet transmission platform providers that provide users with services for a fee and/or offer conditional access implemented by technical measures that require subscriptions or other types of preauthorization are additionally required to make a yearly payment equal to 0.5% of their annual net sales (art. 15).
Sanctions for Transmissions Made in Violation of the Provisions of the Regulation
The Regulation provides that the RTSC may request that the peace court remove and/or block access to content transmitted without a license (art. 10(3)(b)(1)) or authorization (art. 11(3)(b)), following a warning and grace period of three months within which the necessary licenses or authorization must be obtained. Criminal charges with a penalty of one to two years of imprisonment may be brought against natural persons and the members of the board of directors and the general manager of legal persons making the offending transmissions in accordance with article 33 of the Law No. 6112 (Reg. art. 10(3)(b)(2)). The RTSC may also request that the court remove or block content that contravenes other provisions of the Regulation (art. 19). The removal or blocking of access orders by the court are effective only for the offending content or section of the content; however, if it is not possible to target offending content specifically, the court may order the blocking of access to the entire website (art. 19(3)).