I.          Turkish Experience

Turkish television series are a popular source of entertainment, especially within the Balkans, the Turkic republics, and the Middle East.[1] One source even indicates that out of more than one hundred television series produced in Turkey each year, three out of four of them are exported to 103 countries, including Latin America.[2] In 2015, Turkey was presented as the “Country of Honor” in the Marché International des Programmes de Communication Fair (“MIPCOM”) which is a trade show held annually in Cannes facilitating the marketing of television programs and platforms.[3]

In the wake of conventional television distribution methods such as cable, satellite, or terrestrial networks, several video-on-demand (“VOD”) platforms similar to Netflix, such as Blu TV and Puhu TV, have flourished in Turkey offering exclusive content targeted solely for online streaming purposes. Netflix has also announced its first Turkish original series expected to launch globally in 2018.[4]

II.        Applicable Laws

The Code on the Establishment of Radio and Television Enterprises and Broadcasting Services[5] (“Radio and Television Code”) is the primary source of law governing television broadcasting, encompassing many strict rules applicable to broadcasting organizations providing media services through conventional means such as cable, satellite, and terrestrial networks.

The Code on the Regulation of Publications on the Internet and Combatting Crimes Committed by means of such Publication[6] (“Internet Code”) regulates the responsibilities incumbent on content providers, hosting providers, and access providers in terms of combatting crimes committed on online platforms.

For a long time, online VOD service providers have circumvented surveillance from both the Radio and Television Supreme Council (“RTUK”) and the Information and Communication Technologies Authority (“BTK”). The nation was delighted to benefit from such content liberty; however, radical amendments[7] (“the Amendments”) are anticipated due to the enactment of new provisions regarding online VOD service providers. A Regulation will be issued jointly by the RTUK and the BTK within 6 months from the effective date of the Amendments, so its effect on VOD service providers is not yet certain.

III.       Scope of the Amendment

The Preamble to the Amendments explains that recent technological developments in the information industry have encouraged the production of content intended solely for online streaming. The Preamble invokes that online media service providers currently escape tax liabilities and surveillance by the RTUK. The rationale behind the Amending Law is to counteract this by expanding the scope of both the Radio and Television Code and the Internet Code to govern online VOD platforms.[8] In this respect, new legal arrangements were made in an effort to compel online VOD service providers to obtain a broadcast license from RTUK.[9]

The Amendments also apply to content providers and hosting providers domiciled abroad, provided that RTUK finds the broadcasted content to be contrary to either the relevant international conventions or the Radio and Television Code. The scope 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.[10] The amendment does not extend to the unintentional spillover of television signals; however, it does apply to service providers targeting a Turkish audience.

According to the Amendments, if the RTUK discovers an online broadcast without a license, upon RTUK’s request, the Criminal Court of Peace (“CCP”) may order removal of the content and/or issue a decision to block access to the content within the scope of the Internet Code.[11] The CCP must render its decision within 24 hours of the RTUK’s request without holding a trial, and BTK has the authority to execute such a decision.

The Amendments explicitly refer to the Internet Code, which provides that (i) in the event that the content cannot be removed technically, access to the website containing the content in question may be blocked altogether, and (ii) the BTK President may impose an administrative fine from fifty thousand Turkish Liras to five hundred thousand Turkish Liras against content or hosting providers who do not duly implement the CCP decision.[12]

The European Commission for Democracy through Law (also known as the “Venice Commission”) of the European Council adopted an Opinion[13] in regards to the Internet Code on 10-11 June 2016. The Opinion includes constructive criticism on several issues including the right to trial, the need for a separate appeal procedure before a higher court, and harmonization with case law of the European Court of Human Rights (“ECHR”).[14] The Opinion concludes that (i) a set of measures that are less intrusive than access-blocking and removal of content should be introduced in domestic law, and (ii) the legal measures in force should be applied as a last resort.

IV.       Legal Obligations under the Radio and Television Code

One of the many obligations stemming from the Radio and Television Code is that in order to obtain a broadcast license, the applicant must inform RTUK of both the program’s content category (general or thematic broadcasting content) and the preferred language.[15] The RTUK has the authority to issue a warning in cases of non-conformity with the specifications prescribed in the broadcast license[16]

 Radio and Television Code states that (i) individuals, (ii) members of boards of directors of corporations, and (iii) general managers of companies that render broadcasting services without a broadcast license are subject to an administrative fine and a prison term of between one and two years. Broadcasting equipment and premises continuing operation without a license shall also be sealed and shut down by the RTUK.

As regards the conditions regarding the incorporation of private media service provider companies, a broadcast license will only be granted to joint stock companies established pursuant to the Turkish Commercial Code for the exclusive purpose of rendering radio, television, and on-demand broadcasting services.[17]

An individual or a corporation may only be a direct or indirect shareholder in a maximum of four media service providers holding a terrestrial broadcast license. If an individual or corporation is in partnership with multiple media service provider companies, the annual commercial communication revenue arising from these companies may not exceed thirty percent of the total market commercial communication revenue. Otherwise, the shareholders in question must transfer shares to fall below this rate within a ninety day period granted by the RTUK. An administrative fine in an amount of four hundred thousand Turkish Liras per month shall be imposed on individuals and corporations failing to fulfil this obligation.[18]

The total direct foreign capital share in a media service provider company may not exceed fifty percent of the paid-in capital. A foreign individual or corporation may become a shareholder in two media service providers at most. In the event that foreign individuals or corporations acquire shares in companies that are shareholders of media service provider companies and thereby become indirect shareholders of media service provider companies, the chair, the deputy chair, the majority of the board of director members, and the general manager of the company must be Turkish citizens, and Turkish individuals or corporations must have the majority of the general assembly votes.[19]

Another statutory obligation is that domestic or foreign shareholders must by no means own preferred shares in private media service provider companies.[20]

A broadcast license comes with many obligations attached, including: the delegation of a viewer representative,[21] the use of protective symbols,[22] and the preservation of broadcast recordings for a term of one year.[23] This may require media service provider companies to leave room for data storage and employ or re-locate personnel to perform such duties.

The RTUK may impose a warning or an administrative fine against media service providers in breach of ‘responsible broadcasting principles’, depending on how the principle was breached and how many times the violation occurred. A few of the many principles contained in the list include that media services shall not provide content that is (i) contrary to society’s national and moral values, (ii) contrary to general morality and the principles of family protection, (iii) glorifying criminal acts, criminals, and criminal organizations, and (iv) instructive of criminal techniques. However the application of these principles seems questionable considering the most popular television shows on online VOD platforms include Narcos,[24] La Casa de Papel,[25] or Şahsiyet.[26]

With specific reference to VOD media service providers, the Radio and Television Code stipulates that programs which may adversely affect the physical, mental, or moral development of children and teenagers will be carefully monitored in terms of access[27].

In the event of a breach in the responsible broadcasting principles, the RTUK may impose an administrative fine of up to five percent of the total gross commercial communication revenue corresponding to the preceding month.[28] The RTUK also has the authority to suspend broadcasting services for up to ten days or revoke a broadcast license altogether in the event of repeated violations of the same principle within one year.[29]

As per 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[30] (“Regulation”), media service providers must (i) submit a monthly-declaration to the RTUK on 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 including accrued legal interest. Upon expiration of this period, the RTUK may initiate execution proceedings in accordance with the general provisions. Failure to comply with the Regulation is also grounds for broadcast license revocation by RTUK.

V.        Conclusion

The Amendments will facilitate online VOD media service providers in their adherence to the Radio and Television Code, which had long been in force regarding conventional media service providers. The Rules and procedures applicable to content surveillance and the granting of broadcast licenses will be clarified in a future Regulation jointly issued by the RTUK and the BTK within 6 months of the effective date of the Amendments. Until then, the consequences of the Amendments are not very precise. In advance of the future Regulation however, online VOD service providers should exercise careful consideration as to whether current operations are in compliance with the Radio and Television Code.