In brief: media law and regulation in Turkey

Media

Summarise the regulatory framework for the media sector in your jurisdiction.

The key regulations governing the media sector in Turkey constitute:

• the Constitution of the Republic of Turkey (No. 2709);
• international agreements (the European Convention on Transfrontier Television);
• sector-specific Laws (Press Law No. 5187);
• Law No. 4982 on the Right to Obtain Information;
• Radio and Television Law of Turkey (No. 2954);
• Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises;
• Law No. 3093 on Radio and Television Incomes in Turkey;
• Law No. 5651 on Regulating Broadcasting on the Internet and Fighting Against Crimes Committed through Internet Broadcasting;
• general laws (Industrial Property Law No. 6769, Turkish Criminal Law No. 5237, Turkish Law No. 6098);
• regulations (the Advertisement Regulation of Radio and Television Authority of Turkey); and
• directives, communiques, principles and procedures, instructions executing and enforcing and the decisions rendered by the relevant authority.

In 2021, the following developments took place:

• Regulation on the Presentation of Radio, Television and On-Demand Broadcasting on the Internet;
• Radio and Television Supreme Council Regulation on Procedures and Principles for Terrestrial Broadcasting License and Sorting Tender; Regulation on Administrative and Financial Conditions to be Complied By Media Service Provider Organisations and Platform and Infrastructure Operators were amended by the Radio and Television Supreme Council (RTSC). Pursuant to these amendments, which were published in Official Gazette No. 31485, dated 18 May 2021, the signature circular of individuals authorised to represent the company is no longer on the list of documents requested for licence, transmission authorisation and tender applications; and
• the Advertising Board of the Ministry of Trade enacted the Guideline on Commercial Advertising and Unlawful Commercial Practices of Social Media Influencers pursuant to the Consumer Protection Law on 5 May 2021, which regulates the advertising activities of social-media influencers in general.

The RTSC, founded in 1994, is the administratively and financially autonomous and impartial public legal authority for the regulation and supervision of radio, television and on-demand media services. In the field of audiovisual media services, the main function of the RTSC is taking essential precautions for securing freedom of expression and information, diversity of opinion, media pluralism, competition environment for avoiding media concentration and protecting public interests. On the other hand, the Information Technology and Communication Authority (ICTA), the national telecommunications regulatory and inspection authority, may also be intervened and act in some cases in this sector. For instance, under the Right to Information Regulation, ICTA is entitled to impose administrative fines on companies that do not abide by the decisions of the Criminal Court.

Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?

Certain restrictions regarding foreign ownership have been stipulated under Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises. For instance, the total direct foreign capital share in a media-service provider shall not exceed 50 per cent of the paid-in capital. Further, a foreign real or legal person can directly become a partner of a maximum of two media-service providers. Although it is important to point out that if foreign real or legal persons hold shares in companies that are shareholders of media-service providers and become an indirect partner of the broadcasters, the chair, the deputy chair and the majority of the board of executives and the general director of the broadcasting enterprises must be citizens of Turkey, and the majority of the votes in the general assemblies of broadcasting enterprises should belong to the real or legal persons holding Turkish citizenship. Last, foreign shareholders shall, by no means, own preference shares, as domestic shareholders do not.

In terms of the cross-ownership of media companies, the same Regulation indicates that a real or legal person can be a partner directly or indirectly of a maximum of four media-service providers holding terrestrial broadcasting licences. However, in the case of partnership in more than one media-service provider, the annual total commercial communication revenue of those media-service providers in which a real or legal person has direct or indirect shares shall not exceed 30 per cent of the total commercial communication revenue of the sector. The real or legal persons whose total commercial communication revenue exceeds this rate shall transfer their shares to media-service providers so that it will be reduced down to the aforesaid rate within a time limit of 90 days given by the RTSC.

What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?

First, it is necessary to define ‘broadcasting licence’ under Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises. ‘Broadcasting licence’ means the certificate of permission issued separately for each broadcasting type, technique and network by the RTSC to media-service providers to allow them to broadcast using any kind of technology via cable, satellite, terrestrial and similar networks.

Under Law No. 6112, a broadcasting licence may only be granted to joint-stock companies established under Turkish Commercial Code No. 6102. The scope of the purpose of the joint-stock company has to be exclusively determined, concerning providing radio, television and on-demand broadcast service.

However, political parties, unions, professional associations, cooperatives, associations, societies, foundations, local administrations and companies established by them or of which they are direct or indirect shareholders, stockbroker companies and real or legal persons who are direct or indirect shareholders of these companies are not allowed to apply for a broadcasting licence.

Media service providers shall apply for a separate licence for each broadcasting technique and network to the RTSC to be able to broadcast through cable, satellite, terrestrial and similar networks. It should be clearly indicated in the licence document for which broadcasting technique and network the licence is granted. Enterprises requesting to make a simultaneous broadcast on different networks by different techniques should apply for separate licences for each broadcasting technique and network and must provide a simultaneous broadcast.

As per Law No. 7103 on Amending Tax Laws, Certain Laws and Certain Decree Laws stipulating amendments to Law No.6122, media-service providers and online broadcast platforms that only broadcast content over the internet are also subject to these licensing requirements.

As per online broadcasting, the Regulation on Radio, Television and On-Demand Broadcasts on the Internet (the Regulation) outlines licensing requirements regarding three types of licences, namely:

• the INTERNET-RD broadcast licence for online radio services;
• the INTERNET-TV broadcast licence for online television services; and
• the INTERNET-IBYH broadcast licence for online on-demand broadcast services.

As per the Regulation, online broadcasting licences shall only be granted to joint-stock companies established as per Turkish Commercial Law No. 6102, exclusively established for providing radio, television and on-demand broadcasting services.

Under the Regulation, online platform operators that provide various radio, television and on-demand broadcasts through their uniform resource locator address or mobile applications must obtain internet broadcast transmission authorisation from the RTSC.

The fees payable for the necessary authorisation are stipulated separately for cable, satellite, and internet broadcasting, in each relevant regulation. These fees are increased by the revaluation rate declared each year by the Ministry of Treasury and Finance, published on the RTSC website, and collected in accordance with prevalent tariffs and article 42 of Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises, implemented as of the beginning of the January each following year.

The term of a broadcasting licence is 10 years, both according to Law No. 6112 and the Regulation, and there are no specific timescale provisions for obtaining authorisation from the RTSC.

Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?

Law No. 6112 on Establishment and Broadcasting Services of Radio and Television Enterprises does not prohibit broadcasting in foreign languages; however, broadcasts made in foreign languages shall follow the rules of that preselected language and be supervised by the RTSC. On the other hand, the Regulation on the Procedures and Principles of Media Services stipulates that providing broadcasts in languages and dialects other than Turkish by media-service providers is subject to permission to be issued by the RTSC. Thus, the RTSC permits broadcasting in a foreign language if it finds the media-service provider’s application appropriate according to their broadcasting area and technical facilities. However, no permission is required for on-demand media services in languages and dialects other than Turkish.

As per Law No. 6112 on Establishment and Broadcasting Services of Radio and Television Enterprises, broadcasting service providers must comply with the broadcasting service principles stipulated in article 8 of the Law regarding the content of broadcasting services provided, and this provision applies to the content of foreign-produced programmes along with the local-produced programmes. Under the same Law, if television enterprises that conduct general and thematic broadcasts include cartoons in the broadcasts for children, at least 20 per cent of the cartoons, and at least 40 per cent of other children’s programmes, shall be productions made in the Turkish language and reflect Turkish culture. There are no further local content quotas for media-service providers.

However, content to be broadcast for television broadcasters holding a national terrestrial broadcasting licence is as follows:

• television broadcasters are obliged to allocate at least 50 per cent of their broadcast time to European works, excluding the time allocated to news, sports events, contests, advertisements, teleshopping and related data broadcasts; and
• they must allocate 10 per cent of their broadcast time or programme budget broadcasts to European works of independent producers, excluding the time allocated to news, sports events, contests, advertisements, teleshopping and related data.

Additionally, as per the Regulation on Radio, Television and On-Demand Broadcasts on the Internet, the broadcasting services of foreign media-service providers and foreign internet broadcasting platform operators under the jurisdiction of a country other than Turkey may be suspended by the RTSC if it is decided by the RTSC that the media-service providers or internet broadcasting platform operators have acted in violation of Law No. 6112 or any international treaties within the scope of the RTSC’s authority to which Turkey is a party.

How is broadcast media advertising regulated? Is online advertising subject to the same regulation?

The main pieces of legislation governing broadcast media advertising are Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises and the Advertisement Regulation of Radio and Television Authority of Turkey.

As per Law No. 6112, advertisements and teleshopping in television and radio broadcasting services must be broadcast in a manner that is easily distinguishable from the rest of the elements of the broadcasting programme services, by way of the use of audio or visual warnings. Broadcast media advertisements are also within the scope of the Regulation on Commercial Advertisements and Unfair Practices (the Regulation) published in Official Gazette No. 29232, dated 10 January 2015. Thus, advertisements and teleshopping must be made in compliance with the Regulation.

Online advertising is subject to the Consumer Protection Law and the Commercial Advertisement Regulation, which are the main legislation concerning advertisement rules. The Advertisement Board regulates the compliance of advertisements in all media, except for specific broadcasting rules that are governed under Law No. 6112. Also, all online broadcasts in Turkey are subject to Law No. 5651 on Regulating Broadcasting on the Internet and Fighting Against Crimes Committed through Internet Broadcasting. If the content of an online broadcast, including online advertising, constitutes specific crimes that are listed in this Law, access to this website could either be banned by the Information Technology and Communication Authority or by the court, depending on the type of case and urgency.

On 2 October 2021, the RTSC published an announcement on volume levels of commercial communication broadcasts. Pursuant to the announcement, media-service providers are required to keep the volume levels of their commercial communication broadcasts at a level in compliance with the legislation and take the necessary measures stipulated. Correspondingly, commercial communication broadcasts should be at the same volume level as other broadcasts.

Last, the Advertising Board of the Ministry of Trade published the Guideline on Commercial Advertising and Unlawful Commercial Practices Social Media Influencers on 5 May 2021. The main purpose of the Guideline is to guide all individuals, agencies, organisations and institutions that advertise in relation to commercial advertising and practices of social-media influencers. Pursuant to the Guideline:

• oral, written or visual hidden advertising is strictly prohibited on social media;
• if an Influencer advertises a product or a service from which the influencer received a financial income or receives it free of charge or with a discount, the influencer must disclose this fact using hashtags; and
• any form of advertising must be clearly distinguishable from other types of content.

Accordingly, the Guideline divides social-media communication into four platforms, which are:

• video-sharing platforms;
• photograph and message-sharing platforms;
• podcast-sharing platforms; and
• platforms where the content is available for a limited time.

Advertising rules of these four platforms are separately regulated under the Guideline. The Guideline also regulates the liabilities of advertisers, advertising agencies and Influencers separately and each is liable to comply with the Guideline.

Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?

There are no regulations regarding must-carry obligations under Turkish legislation.

Is new media content and its delivery regulated differently from traditional broadcast media? How?

Internet-based on-demand content has been traditionally regulated by Law No. 5651 on Regulating Broadcasting on the Internet and Fighting Against Crimes Committed through Internet Broadcasting. However, with the amendments to Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises, media-service providers that make online broadcasting and platform operators that transmit these broadcasts via the internet are required to obtain a licence from the RTSC and online broadcasting activities are subject to supervising and controlling of the RTSC under the same principles applied to TV and radio broadcasts as per Law No. 6112.

Moreover, unlike traditional broadcast media such as radio and television, new media content is regulated under Law No. 5651. Additionally, advertisements made via new media content are also subject to Law No. 5651.

When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?

Under Law No. 5651 on Regulating Broadcasting on the Internet and Fighting Against Crimes Committed through Internet Broadcasting, companies that obtained the right to a terrestrial digital multiplex capacity allocation in the ranking tender realised under the Regulation regarding Procedures and Principles on Terrestrial Broadcast Licences and the Ranking Tender published in Official Gazette No. 30634, dated 23 December 2018, may, in line with their ranks and the analogue channel capacity, be granted the right to make analogue broadcasts as well as terrestrial digital broadcasts for a period of a maximum of two years. At the end of the two years, analogue broadcasts shall be terminated nationwide. The transition from analogue broadcasting to digital broadcasting has not yet been completed.

Does regulation restrict how broadcasters can use their spectrum?

First, according to Law No. 5809 on Electronic Communications, ICTA is the competent authority for spectrum management, supervision and inspection in Turkey. However, under Law No. 5809, the RTSC is the competent authority regarding the regulation of radio frequencies and television channel broadcasts.

The regulation restricts how broadcasters can use their spectrum. After obtaining the terrestrial broadcast licence, current transmitting facilities must be removed by the private media-service providers or must be transferred to a transmitter procurer and operating company in exchange for a reasonable sum.

Under Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises, the RTSC shall adopt frequency plans concerning television channels and radio frequencies, within the framework of the frequency bands for terrestrial radio and television broadcasts allocated under Law No. 5809. Within the scope of the frequency plans the numbers and types of national, regional and local terrestrial broadcast networks, as well as multiplex numbers for digital broadcasts, shall be determined.

Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?

Under Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises, one of the duties of the RTSC is to take essential precautions, in the field of media services, for media pluralism. On the other hand, the maximum number of media-service providers in which a real person or a legal entity may directly or indirectly hold shares is four. Although there is no specific regulation concerning media plurality in Turkey, the RTSC Strategic Plan of 2019–2023 includes a strategic goal of securing the rights and interests of shareholders by developing a pluralistic and competitive environment in the audiovisual media. In this regard, the RTSC has set forth four activities and projects to be done, namely:

• to carry out terrestrial digital television broadcasting ranking tenders;
• to cooperate with relevant institutions regarding the prevention and detection of unauthorised broadcasting and interference problems;
• to cooperate with relevant institutions regarding the detection of practices that hinder or disrupt competition and prevention of concentration; and
• to carry out terrestrial radio broadcasting ranking tenders.

In its latest pilot of Decision No. 2018/14884, dated 27 October 2021, the Constitutional Court evaluated several applications, and decided that freedom of expression and the press, and the right to a fair trial were violated. The Applications are related to access-blocking decisions of news on nationally broadcast news websites. The Constitutional Court decided that the applications were based on a systematic problem in the implementation of the access-blocking measures stipulated under the Internet Law. Accordingly, the Turkish Constitutional Court evaluated Law No. 5651 on the Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts in its decision on freedom of expression and the press.

The Constitutional Court pointed out the relationship between freedom of expression, the press and article 9 of the Internet Law and made recommendations to the Turkish Grand National Assembly for the reformulation of the relevant article. In this regard, the Constitutional Court concluded that article 9 of the Internet Law must include certain guarantees so that the interventions to the freedom of expression and the press are not disproportionate, and it considered that since the judgeships of peace need to make a decision within 24 hours, this prevents the person or body publishing the internet content from being involved in the process. Therefore, the judgeships of peace authorised to review the objections must observe the balance of interests and evaluate the essence of the allegations to compensate for the lack of legal certainty in the later stages of the proceedings.

Provide a summary of key emerging trends and hot topics in media regulation in your country.

A notable piece of legislation currently adopted in Turkish media law is the Guideline on Commercial Advertisement and Unfair Commercial Practices of Social Media Influencers, which was put into force as per the Advertisement Board’s decision No. 2021/2 on 4 May 2021. The Guideline aims to guide advertisers, advertisement agencies, media organisations, and all persons, institutions, and establishments involved in commercial advertisement and commercial practices of social-media influencers.

The RTSC published the new List of Major Events on 21 October 2021 to ensure that the national and international events considered of great importance for society are broadcast live or via a recording to the public by television free of charge and without encryption. The RTSC will be able to update the List of Major Events through the same procedure. Additionally, the RTSC published an announcement on 2 October 2021 regarding the change in volume levels when switching to commercial communication broadcasts, such as commercials, from other programmes. Accordingly, media-service providers are required to keep the volume levels of their commercial communication broadcasts at a level in compliance with the legislation and take the necessary measures stipulated.

Under the RTSC  Strategic Plan of 2019–2023, five main strategic goals were determined, namely:

• to secure the rights and interests of shareholders by developing a pluralistic and competitive environment in the audiovisual media;
• to carry out audit activities effectively and efficiently to protect the rights and interests of all parties;
• to raise the awareness and tenderness of all shareholders regarding the audiovisual media field;
• to develop national and international policies related to the audiovisual broadcasting sector; and
• to develop institutional resources.

In its latest pilot of Decision No. 2018/14884, dated 27 October 2021, the Constitutional Court drew attention to the problems in the implementation of the access blocking measures stipulated under the Internet Law and made important evaluations regarding the interferences to the freedom of expression and the press. Accordingly, The Turkish Constitutional Court evaluated Law No. 5651 on the Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts in its recent pilot decision on freedom of expression and the press. The Constitutional Court pointed out the relationship between freedom of expression, the press and article 9 of the Internet Law and made recommendations to the Turkish Grand National Assembly for the reformulation of the relevant article.

Some of the relevant expected changes and the steps to be taken accordingly within the media sector are as follows:

• informing the legislative organ about the need for new regulations regarding issues on the establishment of a more effective sanction system and the implementation of joint audits in connection to new technological developments;
• the strengthening of the cooperation among shareholders in the media sector;
• the drafting of more explicit and concrete regulations by the RTSC, an independent and unbiased authority, especially regarding broadcasting principles in areas that are conceived negatively;
• the re-evaluation and revision of the legislative regulations in a manner that enhances the freedom of speech and freedom of information stipulated under the laws;
• the establishment of a more efficient mechanism to enable the consent analysis of the regulatory needs within the media sector and the overcoming of issues regarding regulatory activities;
• conducting studies by ICTA to pave the way for domestic and national productions on new technologies to ensure cybersecurity while it is at the design stage; and
• the draft Türk Telekomünikasyon AŞ Reference Interconnection Offer opened to Public Opinion.