In late March 2018, the Turkish Radio and Television Code was amended by Code No. 7103 with the goal of extending enforcement of the laws already in place for conventional media to online video-on-demand (“VOD”) service providers. The Rules and Procedures with regard to content surveillance and the granting of broadcast licenses were to be announced later in a future Regulation. This ambiguity left practitioners forecasting the legal consequences attached thereto for a long time.
On 27 September 2018, the Radio and Television Supreme Council (“RTUK”) finally published the Draft-Regulation on the Provision of Radio, Television, and VOD Services on Online Platforms (“Draft-Regulation”) on its official website. While this is not the final version, the Draft-Regulation provides significant insight in regard to enforcement of the amended Turkish Radio and Television Code.
1. Obligation to Obtain a Broadcast License
By virtue of the amended Turkish Radio and Television Code, online radio, television, and VOD service providers are now obliged to obtain a broadcast license. This is also applicable to content and hosting providers domiciled abroad provided that RTUK finds the broadcasted content contrary to either the relevant international conventions or the Radio and Television Code. The scope also extends to online transmission by media service providers or platform operators subject to foreign jurisdictions who (i) provide media services intended for the Turkish market in the Turkish language or (ii) provide commercial communication intended for the Turkish market in other languages. The amendment does not cover unintentional spillover of television signals but does apply to service providers targeting a Turkish audience.
The license fee is 10,000.00 TRY (app. 1,660 USD) for INTERNET-RD (online radio services); 100,000.00 TRY (app. 16,660 USD) for INTERNET-TV (online television services); and 100,000.00 TRY (app. 16,660 USD) for INTERNET-IBYH (online VOD services), and may be paid in advance or in installments. The license is valid for a period of 10 years from the date of issuance.
Provisional Article 1(1)(a) of the Draft-Regulation is more convenient for media service providers who already hold a broadcast license for terrestrial, cable, satellite, or other networks. It is sufficient for them to apply for an abridged procedure set out in the Draft-Regulation and thereby extend their broadcasts to online platforms upon RTUK’s approval.
As per Provisional Article 1(1)(b), first-timer media service providers must submit an application to obtain a broadcast license within one month of the effective date of the Draft-Regulation, which as of publication of this article has yet to be published. If a service provider fails to submit such application, RTUK is entitled to (i) resort to the competent Criminal Court of Peace (“CCP”) which may render a decision for content removal and/or block access to the content within the scope of the Internet Code or (ii) file a criminal complaint against the Board Members and the General Managers of the service provider company in question.
One month from the effective date of the Draft-Regulation, Article 10 and 11 will come into effect and RTUK will commence operations on an announcement basis. Thereafter, in the event that RTUK detects broadcasting services being provided without a broadcast license, either ex-officio and/or upon complaint, a warning announcement will be published on RTUK’s official web-site to the attention of such service provider.
The announcement will state that (i) the service provider may apply for a broadcast license (in the event that the broadcast license fee corresponding to a three-month period is duly paid in advance, the broadcasts may proceed for a three-month period); (ii) if the procedures for obtaining a license cannot be completed within the given time, the broadcasts may proceed for another three-month period provided that the corresponding fee is paid in advance; (iii) in the event that the service provider does not comply with the procedures specified in section i of this paragraph or if the broadcasts do not cease within seventy-two hours of the announcement, RTUK will file a criminal complaint against the relevant parties and resort to the CCP for content removal and/or blocking of access to the content.
2. Administrative Fines on Grounds of Responsible Broadcasting Principles
RTUK may impose an administrative fine of up to five percent of the total gross commercial communication revenue corresponding to the preceding month against conventional media service providers in breach of responsible broadcasting principles set out in the Radio and Television Code. Surprisingly, under the Draft-Regulation, the administrative fine threat is not applicable to online radio, television, and VOD service providers; however, it does not preclude them from complying with said principles, given that the service providers risk being imposed with other penalties including suspension of program, suspension of broadcasts, and license revocation.
3. RTUK Commission for Online VOD Providers
As per the Draft-Regulation, online media service providers who offer services in exchange for payment by means of conditional access to subscribers and/or users shall pay a commission to RTUK in the amount of 0.5% of annual net sales by the end of April every succeeding year.
4. RTUK Share
The Draft-Regulation explicitly refers to the Regulation on the Audit of Commercial Communication Revenues derived by Media Service Provider Organizations and the Rules and Procedures on the Declaration and Payment of RTUK Shares (“RTUK Share Regulation”). Accordingly, online television, radio, and VOD service providers are obliged to (i) submit a monthly-declaration to RTUK regarding the total gross commercial communication revenues and (ii) pay the ‘RTUK share,’ which is 3% of the total amount excluding revenue arising from sponsorships.
If the service provider fails to pay the RTUK share in a timely manner, RTUK may request that the service provider pay this fee within 7 days together with the accrued legal interest. Upon expiration of this period, RTUK may initiate an execution proceeding to collect the RTUK share along with the legal costs arising thereof. Failure to comply with the RTUK Share Regulation constitutes grounds for license revocation by RTUK.
5. Concluding Remarks
This article was prepared to provide insight on the highlights of the Draft-Regulation, which is anticipated to enter into force in the near future. The provisions in the Draft-Regulation may be further amended given that it is not the official final version yet.