Sponsored briefing: recent developments in the media and entertainment sector in Turkey

As a result of the pandemic, the perspective on the media and entertainment industry and the way of consuming media content has changed as well as in all walks of life. Streaming platforms play a central role in the economy and their rapid development since the birth of the public commercial Internet more than 20 years ago has produced many societal benefits and new opportunities for freedom of expression and the ‘innovation. Consumers are now turning to streaming platforms where they have many more options and can access them affordably over the internet. From a consumer perspective, this has led them to over-the-top (OTT) media services and digital platforms offering on-demand streaming services. The OTT industry is actually in a period of maturation. We are witnessing a period in which the technology informing OTT trends is becoming more established.

In particular, the demand for platforms offering on-demand streaming services has increased as more original content can be produced thanks to both the greater variety of productions and the fact that it offers a freer space in terms of time limit and content control. With the growing demand for digital media, investments in this field and the number of digital media platforms have also increased.

Turkey has attracted the attention of many domestic and foreign investors in this field in recent years. Despite the company requirement and the Radio and Television Supreme Council (RTUK) content audit, many national digital broadcasting companies have launched their services and offered their original and full content to consumers. The sector continues to increase in value every day with the introduction in the Turkish market of international digital media platforms that offer services in many countries around the world.

There are several important regulations that investors wishing to provide on-demand streaming services in Turkey must follow. The main regulations in this area are (i) the “Law on the Establishment and Broadcasting Services of Radio and Television No. 6112” (RT Broadcasting Law), (ii) the “Regulation on Administrative Conditions and financial services that service providers and media platforms and infrastructure operators are required to comply with” (A&F Requirements Regulations”), and (iii) the “Regulations on the provision of radio, television and on-demand media via the Internet” (Regulations on RToD via the Internet).

All local and foreign digital broadcasting platforms that will broadcast in Turkey must first be licensed by RTUK under the supervision of the Information and Communication Technology Authority (BTK) in accordance with the RT Broadcasting Law . Article 29/A of the RT Broadcasting Act states that media service providers wishing to offer radio, television and on-demand broadcasting services only on the Internet must obtain a broadcasting license, and operators platform wishing to transmit these broadcasts over the Internet must obtain a broadcast transmission license from RTUK. According to the A&F Requirements Regulations, to receive a broadcast license for VOD (video on demand) services:

  • Applicant must be established as a corporation
  • Non-public shares must be registered
  • The company’s articles of association must clearly state the matters governing the structure of the partnership and the questions of participation
  • No usufruct shares shall be issued in favor of any person
  • Domestic and foreign shareholders should not hold preferred shares
  • The provisions of the model articles of association drawn up by RTUK and published on its website must be included in the articles of association (incorporation contract)
  • The capital amount of organizations applying for a broadcasting license to provide on-demand broadcasting services must be at least 100,000 Turkish liras.

The fee for broadcast transmission authorization and broadcasting license for ten years on the Internet is 182,168 Turkish liras each for the year 2022 according to RTUK. In addition, media service providers that provide SVOD (subscription video on demand) and conditional access and operators of online media platforms providing conditional access to customers are required to pay five thousandths (0. 5%) of their annual net sales to RTUK each year as per the Internet RToD Regulations.

The Internet RToD Regulation also regulates in detail the obligations of media service providers and operators of Internet streaming platforms. The most important obligations of media service providers are to stop internet service of on-demand broadcasts that are not considered appropriate by RTUK, to provide requested information to RTUK, to report their commercial communication revenue and to pay this share amount to RTUK. Internet broadcasting platform operators are also required to inform RTUK of the number of users attached to their conditional access module, not to transmit publications from media service providers who do not have a license broadcaster, whose broadcast license period has expired or been revoked, to provide remote monitoring by granting access to RTUK.

As part of the evolution of the film industry, the regulation amending the regulation on support for the film industry was published in the Official Gazette No. 31629 on October 15, 2021. Due to new additions to the regulation, an exception is provided for the application limits for support from the Ministry of Culture and Tourism for foreign film productions. According to Article 9(5), applicants of all types of support could not receive financial support for more than one project in the same year. However, following the addition of the exception clause at the end of the article, this limitation no longer applies to applications for the production of foreign cinematographic films for the support of the ministry. Therefore, foreign film productions may receive financial support for more than one project in the same year.

With the development of the media and entertainment sector, it has also become necessary to take measures to regulate new areas in order to prevent abuses that may occur and to punish crimes committed using electronic communication tools. In fact, the Law on Regulation of Internet Broadcasts and Prevention of Offenses Committed through Internet Broadcasts (Law No. 5651) has been enacted in Turkey and the need to protect social and individual interests arising from regulation Inadequate legal was tried to be met.

Before the amendment made by Law No. 5651; while social media operators consist of content providers, hosting providers, access providers and mass access providers, after the modification made by article 1 of the law n ° 7253 of July 29 2020 named An Act to Amend the Law on the Regulation of Broadcasts via the Internet, and the Prevention of Crimes Committed through Such Broadcasts (Law No. 7253), social network providers have taken their place among the operators of social media . In addition, BTK issued a ruling titled “Procedures and Principles Regarding Social Network Provider” on September 29, 2020, and with this ruling, the boundaries of the related concept were attempted to be determined by specifying the procedures and principles regarding the implementation of the obligations of the social network provider.

“Social network provider”, which is the concept introduced in Turkish legislation by Law No. 7253, is defined as natural or legal persons who allow users to create, view or share content such as text , images, audio, location on the Internet for the purpose of social interaction in Law No. 5651. In addition to covering the content provider, the social network provider also includes elements for users to create and to share content for the purpose of social interaction.

Although the definition of “social network provider” was included in the amendment made by Law No. 7253, this definition has been the subject of various criticisms because the limits of the associated concept are not sufficiently clear. Because it is important for the protection of freedom of expression that the measures and sanctions applied to operators who are social network providers are determined with certain lines and that the operator is only liable to sanctions if he exceeds part of being a content provider.

In fact, as mentioned above, a decision entitled Procedures and Principles Regarding the Social Network Provider was published on September 29, 2020, and in Article 2 of the related decision, entitled “Scope”, it is regulated that natural or legal persons who include content for the purpose of social interaction only in a certain part of the Internet broadcast and platforms where content is offered as a secondary and ancillary service are not considered providers of social networks. However, since the regulations are not published within the framework of the provisions of the law, it can be said that they are not executed in accordance with the principles of legal certainty and predictability.

In accordance with additional article 4/9, as amended by law no. 7253, the social network provider has obligations arising both from its capacity as content provider and as host.

The first of the obligations stipulated in Law No. 7253 is that the foreign-based social network provider, whose daily access exceeds one million in Turkey, must appoint at least one authorized person as a representative in Turkey to ensure the fulfillment of its obligations. obligations under Law No. 7253. In addition, the social network provider must inform BTK of the identity and contact details of the representative and include the contact details of this person on the website in an easily visible and directly accessible manner. . If this obligation is not fulfilled within 30 days from the notification of non-compliance with the obligation, an administrative fine of ten million Turkish liras will be imposed on the social network provider by the president, and an administrative fine of 30 million Turkish liras will be imposed on the social network provider if this obligation is not fulfilled within 30 days from the secondary notification.

For more information please contact:

Onur Alper, founding partner


Nisa Çevik, partner


Nazli Durmayaz, Partner

CABINET ALPER
Akat Mah. Menekse Sk. No 53, Besiktas/Istanbul, Turkey

E: [email protected]

www.alper.av.tr