The “Regulation on the Web-Based Presentation of Radio and Television Broadcasts and Video On-Demand Services“, which has recently been in the pipeline, entered into force upon promulgation in the Official Gazette of August 1, 2019. As one may recall, main provisions on web-based broadcasting were set forth when Article 29/A entitled “Web-based broadcasting services” had been added to the RTÜK (Radio and Television Supreme Council) Law No. 6112 on the basis of Article 82 of the Law No. 7103 of March 21, 2018. It was stipulated that the procedures and principles for the implementation of the said article would be established through a regulation to be jointly drafted by RTÜK and the Information and Communication Technologies Authority (BTK) in six months. This Regulation that sets forth the aforementioned “Procedures and Principles” was promulgated on August 1, 2019.

The regulation designed by RTÜK and BTK in order to establish the procedures and principles on the web-based presentation of radio and TV broadcasts and video on demand (VOD) services, the transmission thereof, the licensing of media service providers and the authorization of platform managers as well as the auditing of said broadcasts established how service providers like Netflix, which have been getting increasingly popular, would be covered by the Turkish law.

The Regulation largely adhered to the legal regulation principles of 2018 and left out individual communication services while including stipulations to be taken into account in determining whether web-based services beyond Netflix, such as YouTube, would be included or not. Hereunder, Broadcasting service determines the scope and is defined as “television broadcast services, VOD broadcast services and commercial communication and radio broadcast services under the editorial responsibility of the media service provider which primarily aims to present programs to inform, entertain or educate the public via electronic communication networks”. 

Description, Time and Conditions of Broadcasting and Transmission Licenses

The regulation ensures that web-based broadcasts are subject to a license through media service providers which have an editorial responsibility. Accordingly, media service providers which already hold broadcasting rights and want to broadcast on the Internet as well as media service providers which want to provide broadcasting services strictly on the Internet will have to obtain the following broadcasting licenses:

• For web-based radio broadcasts – 10-year INTERNET-RD broadcasting license for a fee of TRY 10,000.00,
• For web-based television broadcasts – 10-year INTERNET-TV broadcasting license for a fee of TRY 100,000.00,
• For web-based VOD broadcast services – 10-year INTERNET-VOD broadcasting license for a fee of TRY 100,000.00.

The regulation which introduces the principle that a media service provider can only provide one radio, one television and one VOD broadcast and is required to obtain a license from RTÜK for each service requires that those desiring to provide services on a web-based broadcasting platform now are also required to obtain a “broadcast transmission authority” from RTÜK.

Media service providers which provide broadcasting services to subscribers and/or users for a fee and on conditional access (any and all technical measures and regulations that ensure conditional access to broadcasting services with prior authorization given via subscription and/or another method) will pay five per thousand of their annual net sales to RTÜK until the end of April in the following year.

Netflix Arrives in Turkey in Early September!

The regulation generated public controversy when it essentially required that organizations which are based abroad but provide web-based broadcasts in Turkish and for the Turkish audience be included in the scope. The regulation applicable to service providers including but not limited to Netflix requires that “The provisions of this Regulation shall also apply to the transmission of broadcasting services by media service providers or platform managers the content or hosting providers of which are located abroad and are under the jurisdiction of another state but have been found by the Supreme Council to deliver web-based broadcasts in a manner that violates the international treaties which are concerned with the Supreme Council’s area of responsibility and to which the Republic of Turkey is a party in addition to the provisions of Law No. 6112 as well as broadcasting services by broadcasting agencies that broadcast in Turkish for the Turkish audience or broadcasting services by broadcasting agencies which feature commercial communication broadcasts that are not in Turkish but target the Turkish audience. In order for these agencies to continue with their web-based broadcasts, they shall be required to obtain a web-based broadcasting license from the Supreme Council just like other organizations that are under the jurisdiction of the Republic of Turkey, while platform managers within this scope shall also be required to obtain a web-based broadcast transmission license.”

This statement indicates that service providers based abroad, chiefly Netflix, are required to comply with the rules established by the Republic of Turkey and are subject to the requirement to establish an incorporation and obtain a broadcasting license in Turkey.

The first requirement to obtain a broadcasting license and broadcast transmission authority is to establish a Joint Stock Company in accordance with the provisions of the Turkish Commercial Code. This pushes the service providers based abroad to establish companies in Turkey and be obliged to respond to legal bodies in Turkey.

The regulation introduces a requirement for currently-operational agencies to apply to RTÜK in writing for a broadcasting license within a month after the promulgation of the Regulation. As such, if Netflix wants to continue its operations in Turkey, they will have to establish a Joint Stock Company in accordance with the provisions of the Turkish Commercial Code -if they haven’t already done so- and apply to RTÜK until September 1, 2019.

What Happens if They Operate without a Broadcasting License?

In such a case, a notice/warning will be published on RTÜK’s web page, stating that an application for a broadcasting license in accordance with the provisions of this Regulation can be submitted, broadcasts may continue for an additional three months if the three-month license fee is paid along with the application, the period may be extended for an additional three months if the licensing procedure is not complete within that time period on the condition that cash payments continue, a request to block access to the broadcast will be made to the Criminal Court of Peace by RTÜK if no license application is made within 72 hours after the notice and a criminal complaint will be filed against the board members and CEO of the broadcasting agency. A similar procedure applies to platform managers.

The Key Question: Is Censorship Looming on the Horizon?

The most significant obligation imposed upon media service providers obtaining a web-based broadcasting license is the requirement to comply with the Law No. 6112 on the Foundation of and Broadcasting Services by Radio and Television Channels and the Law No. 5651 on Regulating Web-Based Broadcasts and Combating Crimes Committed via Such Broadcasts. The obligations imposed by the Law No. 5651 are partially limitless and the ambiguities included therein already constitute a major issue. Furthermore, the introduction of a requirement to remove VOD services deemed “inappropriate” by RTÜK from the program catalogue raised criticisms of “censorship“.

Protective Symbols Everywhere!

The “protective symbol system” (TV content rating system) used in all broadcasts subject to the RTÜK system will also be applicable to web-based broadcasts. This is a critical regulation. This is because the “protective symbol system” designed in accordance with the Law No. 6112 isn’t merely concerned with content. The related Regulation states that “Protective symbols indicate that a program may contain potentially harmful contents and/or the age group for which the program is appropriate“. It also states that it can determine the broadcast time for programs that are appropriate for specific age groups or inappropriate for minors/children.

According to the current RTÜK regulation, a 7+ program can be broadcast at any time of the day while a 13+ program can be broadcast after 9.30 pm and a 18+ program between 12.00 am and 5.00 am. As such, an 18+ TV series could only be broadcast between 12.00 am and 5.00 am. Going back to the Netflix example, as many Netflix series and films would fall into the 18+ category, does that mean we will not be able to watch Netflix as we did before?

No. As the regulation was drafted – to a certain extent – with the participation of Netflix and related parties, there’s a provision that brings flexibility regarding this issue. (Although most of the amendments suggested by NGOs which were consulted during the drafting process were not taken into account, this part of the regulation is noteworthy.) Article 21 of the Regulation entitled “the protection of children” provides that “media service providers that have obtained the web-based broadcast license as well as web-based broadcast platform managers who have obtained the authority for broadcast transmission shall be responsible to take measures that enable parental control with regard to broadcasts that may be harmful for the physical, mental or moral development of children”, thus imposing an obligation. On the other hand, it provides that “provisions with regard to the protection of children in Law No. 6112 and this Regulation shall not apply to media service providers and web-based broadcast platform managers that have obtained the web-based broadcast license and provide services under a system of individual subscription to which children cannot register”. This indicates that provisions on the protection of children would not apply to media service providers with individual subscription systems such as Netflix.

It is fair to say the Regulation displays a more appropriate and rights-based approach compared to the Law No. 6112. Considering that many of the prohibitory and obligatory rules were prepared for “protecting children”, media service providers that provide services on specific conditions will operate relatively comfortably.

What’s the Real Risk?

The articles published in the press regarding the regulation generally suggest that web-based broadcasts are now censored as well. The opposition claims that the regulation introduces censorship, one unprecedented in the world, while the government argues that the regulation is similar to the conventional regulations in the rest of the world.

What’s the truth? To us, it’s neither. To suggest such a regulation is unprecedented in the world is to loudly declare an ignorance of the field and of the world. The Internet has surely changed everything. However, “an unconditional love for the Internet” is a thing of the past. Social media is increasingly becoming a platform for cyber attacks by anti-democratic regimes. Russia’s intervention in the US elections through a social media-based cyber attack and its ultimate success have irreversibly changed the perspective of the “free” world on the cyberspace and the activities therein.

On the other hand, a “repressive” mentality is repressive under any circumstances. The path RTÜK has followed so far as well as its decisions and lack of decisions are food for controversy. It is directly affiliated with and reports to the government just like all other administrative bodies that are supposed to be “independent”, which is a source of “distrust”. Adding the BTK and the Law No. 5651 to the equation, there’s a presupposition that the regulation will be implemented for reasons of “censorship”.

Within this framework, it is very natural for such new Internet companies/giants that are ultimately commercial enterprises and, for all their global operations, contribute very little to the world society, to be subject to regulations to ensure that they pay taxes and are aware of their legal liabilities and obligations while protecting the rights- and liberty-based approach. Provided, however, that the instruments of legal certainty function.

The real pressing issue or, more accurately, the cause of risk regarding the regulation is the fact that the Law No. 5651 as well as the Information and Communication Technologies Authority (BTK) are stepping in regarding web-based broadcasts.

The BTK is regarded as the primary authority regarding the Internet environment and its “technical infrastructure” will be used. It is also regulated that the broadcast monitoring and supervision center may be established in cooperation with the BTK while it is owned by the RTÜK, that the RTÜK and the BTK may exchange personnel, that decisions to block access may be enforced via the BTK and that the BTK may impose administrative fines in cases where such decisions are not complied with.

While not as widely recognized by the general public as the RTÜK, the BTK has been straying further and further away from its mission to handle the electronic communications sector as well as the Internet on a rights and liberties basis specifically in the last 7-8 years. Furthermore, it has evolved into a very rigid and conservative institution that fails to understand – and makes no efforts to understand – the realities and the dynamism in the sector in addition to lacking transparency and accountability and being closed to development and innovation. If the BTK carries over its current behavior that is hostile to rights and freedoms to web-based broadcasts, this would inevitably result in a serious state of censorship and chaos, thus leading the regulation astray.

In conclusion;

While regulating web-based broadcasting, which has rendered traditional broadcasting rules and principles dysfunctional, without shifting focus from rights and freedoms and requesting notable Internet companies to establish companies in Turkey, pay taxes and resume operations responsibly are appropriate, it is no doubt that a practice which would create a new medium where administrative institutions and organizations having a record of practices that disregard the main values and principles of a state of law can continue to execute arbitrary decisions and procedures would be detrimental to Turkey.