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Legal Evaluation of On-Demand Internet Broadcasts
SUMMARY

With the developments in technology, the services offered to us by the internet have diversified considerably and the internet has begun to take precedence over the conventional television and radio services. In response to the dynamic and changing nature of the Internet, new legal regulations and measures have begun to be implemented. In this context, in this article, it has been tried to express what optional internet broadcasts are, which have entered our lives as a new concept. Existing legal regulations were evaluated separately and then concluded.

Keywords: Internet, Informatics, Optional Internet Broadcasts, Internet Broadcasts, Television, Radio, Access Blocking, Media Service Providers, Platform Forwarders, Individual Communication Services, Access Provider, Location Provider, Content Provider, BTK, RTÜK

INGREDIENTS
INGREDIENTS
1) DEFINITION AND HISTORICAL DEVELOPMENT OF THE INTERNET
2) THE CONCEPT OF OPTIONAL INTERNET PUBLICATIONS
3) LEGAL REGULATIONS
I. LAW ON REGULATION OF BROADCAST ON THE INTERNET AND FIGHTING CRIMES COMMITTED THROUGH THESE PUBLICATIONS
A. DUTIES AND AUTHORITIES OF INTERNET SUBJECTS
B. MAKING AN ACCESS DENIED DECISION
II. LAW ON THE ESTABLISHMENT AND BROADCAST SERVICES OF RADIO AND TELEVISIONS
A. MEDIA SERVICE PROVIDERS
B. PLATFORM OPERATORS
C. INDIVIDUAL COMMUNICATION SERVICES
4) DEĞERLENDİRME
CONCLUSION

 1. DEFINITION AND HISTORICAL DEVELOPMENT OF THE INTERNET

With the technological innovations that occur in the world and continue to develop day by day, the internet has become an indispensable part of our life, and besides the emergence of new technological inventions, it has led to the necessity of adapting the law to the changing life. Before starting to examine the legal regulations, it would be appropriate to briefly touch on the definition and historical development of the internet.

With a technical definition, the internet is the network system that provides the largest and most comprehensive human and machine unity in the world, formed by connecting all the information networks and computers in the world with a method (protocol) called TCP/IP.[1]

Starting from here, the internet; text, picture, music, graphics, written text etc. created by more than one communication network. g,b can be defined as the network between information systems where files and computer software, in short, all kinds of information created by humans, are shared and transmitted as data.[2]

The person who discovered the internet in today’s sense is Vinton Cerf, who was born on June 23, 1943 in Newhaven. Cerf, who graduated from Stanford University Mathematics Engineering in California in 1966, tried to put data transfer between computers on certain foundations in order to enable his hearing-impaired wife to communicate with the outside world. The inspiration for Cerf’s work is a large internet-like local network called ARPANET, which was established in 1969 by the American army during that period. Cerf took part in the development of the TCP/IP protocol between 1973-1972, following its work, which was officially started to be used in 1970. With the official use of this protocol, it has been possible to connect to the Internet from anywhere in the world.[3]

During the Cold War, various studies were carried out in the USA to protect military communications in the face of a possible nuclear war threat. In this context, a computer network that can operate independently of a single main computer unit has been established by ARPA (Advanced Research Projects Agency), an organization affiliated to the US Department of Defense. Thanks to the military computer network created under the name ARPANET, information transfer was carried out in 1969 between four large computers in the cities of Los Angeles, Santa Barbara, Stanford and Salt Lake City. ARPANET, which was used until 1980, was left for civilian use after the US army moved its activities to its newly established “MILNET” network. In addition to the USA, new network systems were created in England and Japan. The network, which was established in England under the name JANET in 1984, is the first network system established outside the USA. NFS Net system has been activated by the National Science Foundation. In the early 1990s, internet services such as Wais, Gopher and Web were announced.[4]

Today, with the new generation internet technologies, users can write their comments on the internet, send their pictures and become a part of the content by creating content themselves. In other words, users cease to be passive and become active content providers. The name of the technology that provides all of this is Web 2.0. Web 2.0 is used to express the web period, whose content is created by the visitors who use the site, not the site publishers. [5]

The first internet connection in Turkey was made in the early 1990s. This connection was made on 12 April 1993 from METU within the scope of a TUBITAK supported project.[6]

2. THE CONCEPT OF OPTIONAL INTERNET PUBLICATIONS

As a result of the rapid changes in the media sector in our country, political pressures from time to time and strict legal regulations that restrict freedom of expression, television broadcasts have become the monopoly of a few large media companies over time, and the audience has started to lose interest in content consisting of limited and similar topics. Parallel to the sterilization in the television industry, the availability of the internet at any time, the ease of creating content, and the fact that freedom of thought and expression can be used in its simplest form has brought along new technological formations in the world.

Youtube is undoubtedly the first thing that comes to mind. YouTube, one of the social media environments brought with it by Web 2.0 technology, is one of the new generation internet applications that users prefer to watch, upload and share videos. The platform, which usually consists of videos uploaded by individual users, has become a place where TV series and movies are also broadcast in recent years.

Netflix, Amazon Prime, Hulu etc. applications, on the other hand, are organizations that allow members to watch TV series, movies and documentaries in the platform archive online within the scope of membership in return for a monthly or annual fee. At the same time, they can be watched on television, mobile devices and computers with their wide range of devices, thus providing ease of access to their members from anywhere. Our country has kept up with the developments and launched other online platforms such as Blu Tv and Puhu Tv, the number of which is increasing day by day.

In addition to visual content providers, there are digital music, podcast and video streaming services such as Spotify and Fizy that provide instant access to worldwide songs and other content. Likewise, the online service can be used for a fee.

In addition to the positive benefits of the free structure of the Internet, the abuseable nature of the opportunities it provides has brought new legal regulations. In addition, the diversity of the platforms on the internet is increasing day by day and their quality is changing. Legal regulations follow internet publications one step behind and try to adapt to existing developments. Indisputably, the biggest development that left its mark on the last days is the Regulation on the Presentation of Radio, Television and Optional Internet Broadcasts on the Internet, published in the Official Gazette on August 1, 2019, together with the article 29/A added to the Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television. As a matter of fact, the concept of “On-Demand Internet Broadcasts” came into our lives with this change and in Article 4 of the Regulation, “A broadcast service where programs are watched or listened to at a time chosen by the user and/or based on a program catalog arranged by the media service provider upon individual request”. [7] the concept of on-demand streaming service was defined for the first time.

3. LEGAL REGULATIONS

After the internet connection was established in our country, no legal regulation was made for many years and the internet was left free. However, after a certain period of time, with the increase in illegal acts, first decisions were taken by the judicial and administrative courts, and then legal and administrative regulations were made. In our study, current legal regulations will be examined briefly and will be tried to be associated with optional internet publications.

 I. LAW ON REGULATION OF BROADCAST ON THE INTERNET AND FIGHTING CRIMES COMMITTED THROUGH THESE PUBLICATIONS

In parallel with the developments in the world, the Law No. 5651 on Arrangement of Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts in order to enable an effective and correct structure in the fight against crimes committed by abusing the opportunities provided by electronic communication tools, including the Internet, which are rapidly becoming widespread in our country. It was published in the Official Gazette on 04.05.2007 and entered into force. In the justification of the regulation made, necessary preventive measures are taken to protect the family, children and young people from the content of publications that encourage drug and stimulant addiction, suicide, sexual abuse, gambling and similar bad habits by abusing electronic communication tools, including the internet, and protecting children, youth and youth in the electronic environment. It is seen that the aim is to prevent heavy attacks against the family.

With the accepted legal regulation, no new cyber crimes category is created, and no administrative and criminal sanctions that will come into effect after the crimes are committed. It is possible to prevent certain crimes in the Turkish Penal Code from continuing their effects in the electronic environment, including the internet, by two methods, namely administrative and judicial protection measures. For this purpose, the principles and procedures regarding the prevention of certain crimes in the law in electronic environment through content, location and access providers have been determined.

A. DUTIES AND AUTHORITIES OF INTERNET SUBJECTS

In Article 1 of the law, the purpose and scope of the law is to regulate the obligations and responsibilities of content providers, hosting providers, access providers and mass use providers, and the principles and procedures for combating certain crimes committed on the internet through content, location and access providers. is defined as. When the justification of the law and the legal purpose of the law are evaluated together, it is seen that the legislator determines the responsibilities of internet subjects in order to fight crime. However, it would not be correct to reduce the purpose of the law only to the fight against crime. Unlike the general protection measures regulated in the CMK, the main purpose is to eliminate the consequences of the crime and prevent its continuation rather than the fight against crime and the collection of evidence.[8]

Content providers are defined as real or legal persons who produce, change and provide all kinds of information or data to users on the internet in subparagraph (f) of Article 2 of the Law No. 5651. In Article 4 of the law, “The content provider is responsible for all kinds of content that it makes available on the internet.” It is stated that content providers are responsible for all kinds of content that they make available on the internet, uploaded to websites, and somehow ensured to take place in the virtual environment. The same regulation is also included in Article 6 of the Implementing Regulation. In the first sentence of paragraph 2 of Article 4 of the Law, “The content provider is not responsible for the content of someone else to which it links.” It is clearly accepted that the content providers will not be responsible for the content that belongs to someone else to which they link and make it accessible. For example, if a website owner links to other websites in the form of “links” or “banners” on his site, and the content of such links contains illegal content, he will not be responsible for this.

Hosting providers are defined as real or legal persons who provide or operate systems hosting services and content in subparagraph (m) of Article 2, paragraph 1 of Law No. 5651. In order to operate as a hosting provider in Turkey, an activity certificate must be obtained in accordance with the principles specified in the Operating Regulation. Detailed information on who the said hosting providers are and their activity documents can be found on the website of the Information Technologies and Communications Authority.[9] A detailed list of hosting providers providing services within their own structure and hosting providers providing commercial services is available on the relevant web page. The hosting provider notification can also be made on the institution’s website. Responsibility of the hosting provider, known as “hosting service/hosting service”, in Article 5 of the Law: formatted. Accordingly, hosting providers are not obliged to control the content they host or to investigate whether there is an illegal activity. Undoubtedly, with this regulation, it was accepted that the hosting providers could not have information about the millions of content they serve.

In the second paragraph of the article, if the hosting providers are duly informed of the illegal content they provide, in accordance with Articles 8 and 9 of the law no. It is stated that they are obliged to remove the contrary content from publication. Pursuant to paragraph 10 of Article 8 of the Law, in case of a decision to block access as a protection measure, those responsible for hosting providers who fail to fulfill the decision to block access legally communicated to them in accordance with the law, despite the technical means, are given six months to two years if the action does not require a heavier penalty. imprisonment will be given. Another obligation imposed on hosting providers is regarding the storage of traffic information. In Law No. 5651, there is no regulation regarding the storage of traffic information by hosting providers; A regulation was made in the Activity Regulation, which came into force after the law, and in Article 16 of the regulation, hosting providers are obliged to keep traffic information for six months and to ensure the accuracy, integrity and confidentiality of this information. Traffic information is defined as the sum of the values ​​such as parties, time, duration, type of service used, amount of data transferred and connection points regarding all kinds of access in the internet environment in Article 2 of Law No. 5651.

Access providers are defined as natural or legal persons who provide access to the internet environment in subparagraph (e) of Article 2, paragraph 1 of Law No. 5651. In order to operate as an access provider in Turkey, an activity certificate must be obtained in accordance with the principles specified in the Operating Regulation. Detailed information on who these access providers are and their activity documents can be found on the ICTA website. In Article 6 of Law No. 5651, the legal responsibilities and obligations of access providers, namely ISPs, are regulated. According to the law, the access providers are not obliged to check whether the content of the information accessed through them is unlawful and whether it requires legal responsibility. However, the access provider is primarily obliged to prevent access to illegal content published by any of its users, if it is notified in accordance with Law No. 5651 and to the extent that the access provider has the technical ability to block it. Access providers seem to have similar responsibilities with hosting providers. Secondly, in Paragraph 1 of Article 6 of Law No. 5651, it is regulated in the relevant regulation regarding the services provided by the access provider that they will be obliged to keep the traffic information specified in the regulation for a period of not less than six months and not more than two years, and to ensure the accuracy, integrity and confidentiality of this information. Keeping this information for a long time is undoubtedly very important in terms of fighting crime in order to ensure that the perpetrators are revealed. In addition to the administrative fines stipulated in case of failure to fulfill the obligations, it is also regulated that the institution may decide to cancel the authorization.[10]

Within the scope of Law No. 5651, the responsibilities of on-demand internet broadcasts will vary according to the concrete case and the platform used. E.g; While Youtube is generally the hosting provider, it is possible for Netflix to be held responsible as a content provider or hosting provider depending on the type of content. Netflix partners with content providers to license the streaming rights of different TV shows and movies. In addition, it is seen that it has undertaken the production of various content under the name of Netflix Original Contents and bought the broadcasting rights.[11] In this case, it carries the title of both a hosting provider and a content provider, and its area of ​​responsibility is determined according to the title it carries. If we continue the example, if a criminal element is found in a Netflix Original Content produced by Netflix, it will be fully responsible for the content it makes available and bear all legal consequences. In cases where it only hosts the content as a hosting provider, it will not be liable even to check the content it provides or to investigate whether there is an illegal activity, but only if it is duly notified by the relevant people and if it is technically possible, it will be obliged to remove the illegal content.

B. MAKING AN ACCESS DENIED DECISION

After determining the areas of responsibility of internet subjects within the scope of Law No. 5651, it would be appropriate to mention the application area of ​​the law. If there is a suspicion that a crime has been committed or an unlawful situation such as violating personal rights or privacy through internet access is in question or this is proven by a court decision, access to the website containing the criminal element can be made through the court, however, Telecommunication Communications There are cases where the Presidency has the authority to be blocked ex officio.

The main thing is that the decision to block access is made by the judge or court. In the 8th article of the Law, the competent judicial authorities are determined in the decision to prevent access to be given depending on the catalog crimes. During the investigation phase, the judge may decide to block access, and during the prosecution phase, the court may decide to block access. During the investigation phase, the public prosecutor can also make a decision in this direction. However, for this, there must be a situation in which it is inconvenient to be delayed and it must be submitted to the approval of the judge within twenty-four hours. The judge has to make his decision within twenty-four hours at the latest, and if it is not approved within this period, the protective measure must be lifted immediately by the public prosecutor. Decisions on blocking access given by judicial authorities within the scope of the article are called protective measures. Against the decisions regarding the blocking of access given as a protection measure, an appeal can be made in accordance with the provisions of the Criminal Procedure Law No. 5271.

In the case of catalog crimes, which are regulated in two subparagraphs in the first paragraph of Article 8 of the Law, the Presidency’s authority to take a decision to block access as an administrative measure varies depending on whether the content or hosting provider is located abroad or in the country. In case the content or hosting provider is located abroad, the Presidency may decide ex officio to block access regarding all catalog crimes. If the content or hosting provider is located in the country, the Presidency will be able to use this authority only for publications that constitute the crimes of sexual abuse of children, obscenity and prostitution among catalog crimes.

With the article 8/A added to the law in 2015, the scope of the law was expanded by adding the reasons for the right to life, the protection of life and property of individuals, the protection of national security and public order, the prevention of crime or the protection of general health, in addition to the above-mentioned catalog crimes. In the presence of a number of reasons, the judge may decide to remove the content and/or block access to the broadcast on the internet, upon the request of the Presidency or the ministries related to the protection of national security and public order, the prevention of crime or the protection of general health, in cases where delay is inconvenient. . Upon the request of the Presidency or the relevant Ministries, the decision to remove the content and/or block access given by the President is submitted to the approval of the magistrate within twenty-four hours by the President. The judge announces his decision within forty-eight hours; otherwise, the decision will be lifted automatically. With Article 8/A, it is seen that administrative authorities are also authorized besides judicial authorities. Access blocking decisions made by the Presidency are considered administrative measures. Although it is controversial to grant an administrative authority the authority to block access for general and abstract reasons such as national security and public order, it is a positive arrangement to control the decisions by ensuring that the decisions made by the president are submitted to the court for approval.

In Article 9 of the Law, the participation of the judicial authorities in the process is regulated in the decisions to prevent access to be made due to the violation of personal rights and in Article 9/A of the privacy of private life. Pursuant to Article 9, which was amended by Law No. 6518, real and legal persons, institutions and organizations claiming that their personal rights have been violated due to the content of the broadcast may apply to the content provider, or if they cannot reach it, to the hosting provider, and request that the content be removed from the broadcast by the method of warning, or by applying directly to the magistrate. may also request that access to the content be blocked. The peace judge will also decide on the application within twenty-four hours at the latest, without holding a hearing, and will rule that access to the content regarding the broadcast, section or section that is deemed to have violated the personal rights only will be blocked. Unless it is obligatory, it cannot be decided to block access to the entire broadcast on the website. However, if the judge considers that the violation cannot be prevented by the method of blocking access to the content by specifying the URL address, he may also decide to block access to all broadcasts on the website, provided that he/she states the reason.[12]

The blocking of access within the scope of Article 9/A of the Law is made by the Presidency by the application of the persons who are alleged to have violated the privacy of their private life and by sending this request to the Association for implementation by the Presidency, or by the Presidency directly upon the President’s order in cases where delay is inconvenient. After access is blocked in this way, within twenty-four hours, those who make requests submit their requests to the decision of the magistrate, and the Presidency submits its decision to the magistrate’s approval. It is regulated that the peace judge will also announce his decision within forty-eight hours. The blocking of access due to the violation of the privacy of private life is primarily provided by the Presidency, and then the judicial authorities come into question.

If we summarize in general, with the law numbered 5651, the duties and authorities of hosting providers, content providers and access providers are regulated, various catalog crimes and the right to life and the safety of life and property of individuals, national security and public order, general health, personal rights and finally private rights. We can say that the privacy of life is protected, and the decision to block is called a protective measure or an administrative measure, according to the authority that made the decision to block access.

2. LAW ON THE ESTABLISHMENT AND BROADCAST SERVICES OF RADIO AND TELEVISIONS

Purpose of the Law In Article 1, “The purpose of this Law is; regulation and supervision of radio, television and on-demand broadcasting services, ensuring freedom of expression and information, administrative, financial and technical structures and obligations of media service providers and the establishment, organization, duties, powers and responsibilities of the Radio and Television Supreme Council. ” has been defined as. Under the jurisdiction of the State of the Republic of Turkey, matters related to radio, television and on-demand broadcasting services made by all kinds of techniques, procedures and means, under any name, by electromagnetic waves or other means are included in the scope of the law.

While the Radio and Television Supreme Council (hereinafter referred to as RTÜK) has been in charge of supervising only radio and television broadcasts, in 2018, internet broadcasts were also included in its scope with a big change that made an impact all over the country. As a justification for Article 29/A added to the law, “Media service providers broadcasting licensed from terrestrial, satellite and cable media have started to offer their broadcasts over the internet at the same time. In addition, many organizations that do not have a license from the Radio and Television Supreme Organization have started to broadcast their radio and television contents unregistered over the internet”. Those who transmit these broadcasts are not authorized by the Information Technologies and Communications Authority. They do not have “licenses” granted “broadcast transmission authorization” by RTÜK. “Therefore, these organizations not only avoid broadcast content control, but also avoid taxes and similar financial liabilities due to the income they obtain from the broadcasts in question, mostly from abroad. For the stated reasons, there is a need to audit the radio and television contents presented over fixed and mobile internet infrastructures. content control and taxation liability are shown. Although it is mentioned that there is no content control, we have mentioned the supervisory authority of the Criminal Court of Peace and Telecommunication Communication Presidency, which is made with the law no. 5651 mentioned in the previous section. In this section, with the amendment made, the new powers of RTÜK and the obligations of media services providers and platform operators will be mentioned, and the linking of laws with each other will be included in the next section.

While radio and television broadcasts made in the classical sense are currently under the control of RTÜK, with the amendment made, even if they are presented on the internet, they are under the control of the board. According to the first paragraph of article 29/A, media service providers that already have temporary broadcasting rights and/or broadcasting licenses from the Supreme Council, without the need to obtain any other license, can use these rights and licenses and broadcasts with this Law and number 5651 dated 4/5/2007. In accordance with the provisions of the Law on the Regulation of Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts, they will also be able to present online. In other words, the radio and television broadcasts offered on the internet will have to comply with the provisions of the law numbered 5651 in addition to the law numbered 6112. In the continuation of the paragraph, it is stated that media service providers who want to serve only over the internet should obtain a broadcast license, and platform operators should obtain a broadcast transmission authority. On-demand broadcasting services are defined in the definitions section of the law numbered 6112 as “broadcasting services where programs are watched or listened to at a time chosen by the user and based on a program catalog arranged by the media service provider upon individual request”. In the second part of our study, based on this definition, it has been tried to give examples of on-demand internet publications available today.

In order to determine the procedures and principles regarding the provision of radio, television and on-demand broadcasting services over the Internet, the transmission of these services, the granting of broadcast licenses to media service providers over the Internet, broadcast transmission authorization to platform operators, the supervision of the said broadcasts and the implementation of Article 29/A. In line with the paragraph, the Regulation on the Internet Environment of Radio, Television and On-Demand Broadcasts No. 30849, which was jointly issued by the Information Technologies and Communication Authority and the Radio and Television Supreme Council, entered into force by being published in the Official Gazette on 01.08.2019.

According to the regulation, INTERNET-RD broadcasting license is given to media service providers who request to provide radio broadcasting from the internet, INTERNET-TV broadcasting license is given to those who request to provide television broadcasting from the internet, and INTERNET-İBYH broadcasting license is given to those who request to provide on-demand broadcasting services from the internet. . The same media service provider can only offer one radio, one television and one broadcast-on-demand service and must obtain a separate broadcasting license for these services. If the media service provider wishes to present its broadcasts on cable, satellite, terrestrial and similar environments within the scope of the broadcasting license on the internet, it must obtain a separate broadcasting license for each broadcasting technique and medium.

A. MEDIA SERVICE PROVIDERS

It is seen that there are two subjects under the name of media service provider and platform operator in Article 29/A of the regulation. Media service provider is defined in the definitions section of the law as a legal entity that has editorial responsibility for the selection of the content of radio, television and on-demand broadcasting services and decides on the arrangement and publication of this service. Television and radio channels that we use in daily life such as 24 Kitchen Medya Hizmetleri Anonim Şirketi (24 Kitchen), Turkuvaz Aktif Television Production Joint Stock Company (ATV), HD Broadcasting and Media Services Joint Stock Company (Power Pop) [13] are media service providers. According to Article 6 of Law No. 6112, Media Service Providers are held responsible for the content and presentation of all broadcast services, including commercial communication and those produced by third parties. Media service providers with a license and organizations that obtain a broadcast license from the Supreme Council in accordance with the relevant legislation from terrestrial, satellite, cable (except for those that have a broadcast license for a single province only) or other media after the publication of the Regulation, be limited to the duration of the license and the URL to which they will present their broadcasts. has the right to present its broadcasts on the internet without the need for any other license, provided that the address and/or the platform operator that will transmit its broadcasts is registered by the Supreme Council, provided that it complies with the law no. 5651 as well as the law no. 6112. If media service providers that have temporary broadcasting rights and/or broadcasting licenses from the Supreme Council also offer radio and television broadcasting services on the internet, to broadcast these broadcasts simultaneously with other media without making any changes; on-demand broadcasts must be presented in the same program catalogue.

However, we would like to emphasize that, if media service providers that have temporary broadcasting rights and/or broadcasting licenses from the Supreme Council want to broadcast the audio-visual services included in the broadcast flow chart, from the archive or warehouse, without simultaneous broadcasting, they must obtain an optional broadcasting license from the internet. In other words, in the case of an option where the programs can be used at a time chosen by the user and/or upon individual request, the temporary broadcasting right and/or broadcasting license will be insufficient and an optional broadcasting license will be required. This regulation is in parallel with the regulation of separate license requirement for each broadcasting technique in paragraph 5 of Article 5 of the regulation.

Media service providers who want to offer radio, television and on-demand broadcasting services only on the internet must obtain a broadcasting license from the Supreme Council. Broadcasting license on the Internet is given to joint stock companies established in accordance with the provisions of the Turkish Commercial Code, exclusively for the purpose of providing radio, television and on-demand broadcasting services. As of December 24, 2019, there is no company in the list of “Institutions with an Internet Broadcasting License” on the website of RTÜK, but we see that many companies are in the list of “Organizations Applying for Broadcasting Permits from the Internet”. Although organizations with broadcasting licenses are not available at the moment, it can be easily predicted that the number will increase day by day. In case of broadcasting service without obtaining a broadcasting license, he can apply for a broadcasting license to the media service provider on the internet in accordance with Article 10 of the regulation, and that he can continue his broadcasts for three months if he pays the broadcast license fee corresponding to three months, together with the petition containing the application request and the attached undertaking, If the broadcasting license is not completed within the specified period and the broadcasting license fee to be calculated for this period is not completed in advance, it can provide broadcast services for an additional three months, does not submit the undertaking with the petition containing the application request, and does not pay the broadcast license fee corresponding to three months in advance or does not broadcast the broadcast license. If he does not terminate his services within seventy-two hours following this announcement, according to the provisions of the 2nd paragraph of article 29/A, “a real and legal person who does not have a temporary broadcasting right and/or broadcasting license from the Supreme Council or whose right and/or license has been cancelled. In the event that the Supreme Council determines that the broadcasting services of the media are transmitted over the internet, upon the request of the Supreme Council, the judge of the peace may decide to remove the content and/or block the access regarding the said broadcast on the internet. This decision is sent to the Information Technologies and Communication Authority for necessary action. The peace judge decides on the Supreme Council’s request within twenty-four hours at the latest, without holding a hearing. Against this decision, an objection can be made in accordance with the provisions of the Criminal Procedure Law dated 4/12/2004 and numbered 5271. The third and fifth paragraphs of Article 8/A of the Law No. 5651 shall apply to the decision to remove and/or block access to the content given pursuant to this article. Upon the request of the board, the Criminal Judge of Peace may decide to remove or block the content that does not have the right to broadcast. In addition, pursuant to Article 33 of the law regarding those concerned, “The members of the board of directors and general manager of real persons and legal persons who broadcast without obtaining a broadcasting license from the Supreme Council or despite the suspension of their broadcasts by the Supreme Council or the cancellation of their broadcasting license, shall be sentenced to imprisonment from one year to two years. shall be punished with a judicial fine from one thousand days to five thousand days. The security measures in Article 60 of the Turkish Penal Code No. 5237 are also applied to legal entities. Broadcasting devices and facilities that continue to operate without permission are sealed by the Supreme Council.” It is warned that a judicial fine or a prison sentence may be imposed and the necessary action is taken.

According to the second paragraph of the same article, media service providers that broadcast outside the license type and establish unauthorized transmitters despite having a broadcasting license will be warned by the Supreme Council, and the first paragraph will be applied to those who continue broadcasting without permission despite the warning. Obligations of media service providers wishing to broadcast over the Internet are specified in Article 16 of the regulation.

Broadcasting license fees are determined in Article 12 of the Regulation. According to this; INTERNET-RD broadcasting license fee is 10.000.00 Turkish lira; INTERNET-TV broadcasting license fee is 100.000.00 Turkish liras; INTERNET-İBYH broadcasting license fee is 100.000.00 Turkish liras. In addition, media service providers that provide broadcast services to subscribers and/or users for a fee and through conditional access pay five per thousand of their annual net sales to the Supreme Council until the end of April of the following year. As it is known, one of the most important purposes of including the organizations broadcasting on the internet within the scope of the law was to make them tax liable. In accordance with this purpose, the license fees for broadcasting on the Internet are determined by the Supreme Council by increasing the revaluation rate announced in accordance with the provisions of the repeated article 298 of the Tax Procedure Law dated 4/1/1961 and published on the website of the Supreme Council, and as of the beginning of the following January. and the obligation to pay according to the tariff valid on the date of issue of the broadcast license document on the internet is foreseen.

The validity period of the broadcast license certificate and the renewal conditions are stipulated in Article 14 of the regulation. Broadcasting license on the Internet is given for a period of ten years. The beginning of the license period for broadcasting on the Internet is the date the document is issued. At least two months before the end of the period, an application can be made to the Supreme Council and a request for renewal of the broadcasting license can be made on the internet. In this case, if the broadcasting license fee is requested to be paid in installments, the condition of presenting a bank letter of guarantee is not sought. Applications made after the expiry of the deadline are only considered as new applications.

According to the provisions of paragraph 3 of article 29/A, although the content or hosting provider is located abroad, the media service providers under the jurisdiction of another country, which is determined by the Supreme Council, to broadcast in violation of the international agreements regarding the mandate of the Supreme Council to which the Republic of Turkey is a party and the provisions of this Law. The provisions of the second paragraph of the law are also applied to the broadcasting services of broadcasting companies that broadcast in Turkish on the internet for Turkey or that broadcast commercial communication broadcasts for Turkey, although the language of broadcasting is not Turkish. In order for these organizations to continue their broadcasts on the internet, it is obligatory to obtain a broadcasting license from the Supreme Council, like other organizations under the jurisdiction of the State of the Republic of Turkey.

In Article 18 of the Regulation, the cancellation of the broadcasting license on the internet is regulated. In the event that one of the conditions required for granting a broadcasting license on the Internet is lost and the obligation set out in the fifth paragraph of Article 6 of the Law no. 6112 is not fulfilled, the media service provider is given a period of thirty days to fulfill the necessary conditions. The broadcasts of the organization that does not fulfill the aforementioned condition despite the given time will be suspended for three months. If the condition is not fulfilled within this period, the broadcasting license of the relevant institution on the internet is revoked. The broadcasting license of the institution, which is determined to have obtained compliance with the conditions required for granting the broadcasting license from the internet environment by fraud, is revoked. If the media service provider cannot perform the broadcast service on the internet due to force majeure or other reasons to be accepted by the Supreme Council, the broadcasting license on the internet may be terminated upon request.

B. PLATFORM OPERATORS

Platform operator, on the other hand, is defined as an organization that transforms a large number of broadcasting services into one or more signals and transmits them via satellite, cable and similar media, in encrypted and/or unencrypted form, in a way that the audience can receive directly. Platform operators are authorized by the Information Technologies and Communication Authority to provide electronic communication services in accordance with Article 29 of the law. Administrative, financial and technical conditions to be complied with regarding the transmission activities of broadcast services are determined by the Supreme Council and broadcast transmission authority is given to the organizations that fulfill the conditions. Platform operators are obliged to provide services to media service providers in terms of impartiality and fairness, in reasonable and non-discriminatory conditions. Broadcast transmission authority over the internet is given to limited liability or joint stock companies established in accordance with the provisions of the Turkish Commercial Code. In order to grant broadcast transmission authorization, it is not required to be authorized by the Authority to provide electronic communication services. The service fees that the platform operators will receive from media service providers are determined with the approval of the Supreme Council. Internet broadcasting platform operators are obliged to fulfill the requirements of Article 17 of the regulation.

Broadcast transmission fees are determined in Article 15 of the Regulation. Accordingly, the broadcast transmission authorization fee over the internet is 100,000,00 Turkish lira per year. In addition to this fee, internet broadcasting platform operators providing conditional access pay five per thousand of their annual net sales to the Supreme Council until the end of April of the following year. As it is known, one of the most important purposes of including the organizations broadcasting on the internet within the scope of the law was to make them tax liable. In accordance with this purpose, broadcast transmission authorization fees will be determined by the Supreme Council by increasing the revaluation rate announced in accordance with the provisions of the repeated article 298 of the Tax Procedure Law dated 4/1/1961 and numbered 213, and will be published on the website of the Supreme Council from the beginning of the following January. and will be paid according to the tariff valid on the date of issue of the broadcast transmission authorization document over the internet. Broadcast transmission authorization fee over the Internet is determined on a calendar year basis. If a broadcast transmission authorization certificate is issued during the year, the authorization fee is calculated as a pro-rata for the remainder of the year.

In case of broadcasting service without obtaining a broadcast transmission authorization, in accordance with Article 11 of the Regulation, the platform operator can apply for broadcast transmission authorization from the internet, together with the petition containing the application request and the attached undertaking, if the broadcast transmission authorization fee corresponding to three months is paid in advance, for a period of three months. If the broadcast transmission authorization process is not completed within the specified period and the broadcast transmission authorization fee to be calculated for this period is paid in advance, it can transmit broadcast services for an additional three months, does not submit the undertaking together with the petition containing the application request and does not submit the broadcast transmission authorization corresponding to three months. does not pay the fee in advance or does not terminate the transmission of broadcasting services within seventy-two hours following this announcement, in accordance with the provisions of paragraph 2 of article 29/A, “Find a temporary broadcasting right and/or broadcasting license from the Supreme Council. In case it is determined by the Supreme Council that the broadcast services of real and legal persons whose rights and/or licenses have been revoked are determined by the Supreme Council, upon the request of the Supreme Council, the judge of the peace may decide to remove the content and/or block access regarding the broadcast in question on the Internet. This decision is sent to the Information Technologies and Communication Authority for necessary action. The peace judge decides on the Supreme Council’s request within twenty-four hours at the latest, without holding a hearing. Against this decision, an objection can be made in accordance with the provisions of the Criminal Procedure Law dated 4/12/2004 and numbered 5271. The third and fifth paragraphs of Article 8/A of the Law No. 5651 shall apply to the decision to remove and/or block access to the content given pursuant to this article. Upon the request of the board, the Penal Judge of Peace is warned that the content that does not have the right to broadcast may be decided to be removed or blocked, and the necessary action is taken.

Internet broadcasting platform operators are also media service providers who do not have a broadcasting license from the Supreme Council or whose broadcasting license has been revoked from the Supreme Council, and the jurisdiction of another country, which is determined by the Supreme Council to broadcast in violation of the provisions of the Law No. stops the transmission of the broadcast services of the media service providers under its authority, following the notification of the Supreme Council’s decision. The broadcast transmission authorization of the platform operator, which does not stop the transmission of broadcast services despite the notification or does not fulfill its other obligations within the period given by the Supreme Council, is canceled and this situation is reported to the Authority.

According to the provisions of paragraph 3 of article 29/A, although the content or hosting provider is abroad, the international agreements regarding the duty area of ​​the Supreme Council to which the Republic of Turkey is a party and the jurisdiction of another country, which is determined by the Supreme Council, to broadcast in violation of the provisions of this Law, platform operators The provisions of the second paragraph of the law are also applied to the broadcasting services of the broadcasting companies that provide the transmission from the media. In order for these organizations to continue their broadcasts on the internet, platform operators, like other organizations under the jurisdiction of the State of the Republic of Turkey, must obtain a broadcast transmission authorization.

C. INDIVIDUAL COMMUNICATION SERVICES

Individual Communication Services are defined as “the way of providing audio-visual interaction and communication between people” in Article 3 of the Regulation on the Presentation of Radio, Television and Optional Internet Broadcasts on the Internet, and is excluded from the scope of the regulation. Personal Youtube channels, live broadcasts from platforms such as Facebook and Instagram, new applications such as Skype Calls and Periscope are the first things that come to mind when it comes to interpersonal audio-visual interaction. While determining individual communication services, it will be possible to act from the point of broadcasting regularly and depending on a broadcast flow schedule. However, the internet continues to develop rapidly and the examples we give by counting are insufficient to indicate the application area of ​​the law. There are many uncertain areas in the law or regulation, and each dispute that arises must be evaluated according to its concrete, own characteristics. RTÜK Member Faruk Bildirici stated that there are many ambiguous and “grey areas” in the new law, that RTÜK should definitely clarify this in favor of freedoms. [14] In the discussions that started after the entry into force of Article 29/A added to the law, RTÜK President Ebubekir Şahin said, “Media such as sharing sites and social media are not included in this. It covers the publishing activities carried out on the Internet”.

The exclusion of Individual Communication Services from the scope of the law is undoubtedly an appropriate regulation. If the contrary is accepted, the obligation of ordinary internet users to obtain a broadcasting license by paying a fee of 100.000.00 TL will make the internet an unusable area. However, the fact that the application area of ​​the law is not fully clear in the law and regulation leaves the application to the initiative of the administration as it is extremely objectionable. Therefore, the situation of both article 29/A of Law No. 6112 and the provisions of the regulation is controversial against the principle of “predictability of the law”.[15]

4. DEĞERLENDİRME

The existence of Article 29/A added to the Law No. 5651 on Regulating Broadcasts Made on the Internet and Combating Crimes Committed Through These Broadcasts and Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television will change the quality of all broadcasts made over the internet, especially on-demand internet broadcasts. and the existence of two laws and two administrative institutions on the same subject may cause problems in practice.

The Internet is, by its very nature, an “area of ​​freedoms” that “doesn’t need permission” and can “operate freely”.[16] Subjecting the Internet to a permission regime does not coincide with the nature of the system. [17]

Platforms such as Netflix, BluTv, PuhuTV are formations where users can access content by paying a certain fee. Decisions to block access to these sites due to the lack of a broadcasting license will undoubtedly violate the rights of the users first. Users will be unable to access the service they subscribe to and they will want to get back the usage fee they have paid under the General Provisions of the TCO, and this will create a problem especially for organizations broadcasting from abroad. On the other hand, since subscriptions to platforms such as Netflix are paid, it is quite natural that the contents of the platforms here are different from the platforms that are open to everyone and that broadcast free of charge, and that the paying subscriber expects an “uncensored broadcast”.[18]

The law gives RTÜK the right to apply to the Criminal Court of Peace to block access to sites that do not have a broadcast license/broadcast transmission authorization over the internet. Upon request, the Criminal Court of Peace will be able to examine the file within 24 hours and decide to block access without holding a hearing. In blocking access, first of all, object (URL) based access blocking decision will be made. In addition, “in cases where technically it is not possible to block access to the infringing content or the violation cannot be prevented by blocking access to the relevant content, a decision to block access can be made for the entire website”.[19]The decision to block access to the entire site may result in blocking access to all platforms, due to the working logic of platforms such as Netflix. However, a problem arises here. In accordance with Articles 32/9 and 7/3 of Law No. 6112, it is possible to file an action for annulment in administrative jurisdiction against the decisions of RTÜK. In lawsuits to be filed in administrative jurisdiction, the other party (media service provider/platform operator) is given the right to defense and the right to be heard, and the evidence is gathered and a decision is made. However, with this regulation, the authority was vested in the criminal judge of the peace, not the administrative judiciary. Since the Criminal Judge of Peace will make the decision “on file” without holding a hearing, it is not possible to grant the right of defense to the media service provider.[20] The internet subject, about whom a decision to block access was made, is against this decision, but 267. Vd. of the CMK No. 5271. may be objected to. [21] This would clearly violate the right to a fair trial.

It is a big question mark to what extent it would be a correct practice to grant RTÜK, a media organization, the authority to control broadcasts on the Internet and to demand blocking of access to broadcasts. The Internet is a different field from the classical media by its nature; Giving the authorities related to these areas to the same institution may cause problems especially in practice. On the other hand, such an authority has already been granted to the Information Technologies and Communication Authority. In addition, if the same authority is given to another institution such as RTÜK, which has no relation with these institutions in terms of duty, it is inevitable to experience a conflict of authority between the said institutions.[22] BTK is expressly authorized by Law No. 5651 to prevent illegal content on the Internet. Despite the decision of one institution to “close”, the decision of another institution to “continue broadcasting” may harm legal security. As a matter of fact, the enacted regulation will not be able to prevent this.

CONCLUSION

With the development of technology, the structure of the internet, which enters our lives more and more every day, has changed day by day. Clothing and grocery shopping has started to be done online, and even our eating habits have changed due to the increase in online food ordering sites. Undoubtedly, the biggest change has been experienced in terms of communication and communication technologies. Television and radio follow-up has gradually decreased, and the use of internet applications such as Netflix, PuhuTv, Youtube, BluTv, which allows people to access whenever and wherever they want, has increased day by day. Although these applications have been in our lives for years, the concept of “On-Demand Internet Broadcasts” is a very new concept and has entered our lives with the article 29/A added to RTÜK. With the regulation made, the Radio and Television Supreme Council has become authorized besides the Information Technologies and Communications Authority, which is the primary authority for the control of the internet, based on the authority given by the law numbered 5651. It means restriction of freedom, such as blocking access, and while the authority of any administrative institution is controversial enough, granting authority to two institutions on the same issue will create quite a problem in practice and cause conflicts of authority. In addition, when the structure of the Radio and Television Supreme Council is examined, it will be clearly seen that it does not have any material or humane equipment to examine and control all internet broadcasts.

It can be said that there is almost no limit. With the internet, it is almost impossible to control all the publications published or to be published on the internet. Since the date of 01 August 2019, when the regulation entered into force, there has been no remarkable request from the Radio and Television Supreme Council and no decision to block access in this direction. In my opinion, the purpose of this regulation is to generate income from media service providers and platform operators that publish and transmit on-demand internet broadcasts, which constitute a great alternative to existing media organizations that are losing blood day by day due to censorship. Nevertheless, the gray areas need to be clarified immediately in order to eliminate the contradictions that may arise due to the uncertainty created by the existence of two existing laws (without other legal regulations) and the existence of two administrative institutions.

REFERENCES

CLASSIC RESOURCES

  1. Artun Avcı, Türkiye’de İnternet ve İfade Özgürlüğü, Legal Yayınları, İstanbul, 2013
  2. Barış Günaydın, İnternet Yayıncılığı ve İfade Özgürlüğü, Adalet, Ankara, 2010
  3. Berrin Bozdağan Akbulut, Bilişim Suçları, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, Konya, 2000
  4. Billy Baron/Jill H. Ellsworth/Kevin M. Savetz, Internet Unleashed, Çev: Nezihe Bahar/Devrim Türkmen, İstanbul, Sistem Yayıncılık, 1998
  5. Cankat Taşkın, İnternete Erişim Yasakları, Seçkin Yayınları, Ankara, 2016
  6. Emrah Birlik, İnternette Erişimin Engellenmesi, Academia, 2014
  7. Kayıhan İçel-Yener Ünver, Kitle Haberleşme Hukuku, Beta Yayıncılık, İstanbul, 2009
  8. Murat Volkan Dülger, Bilişim Suçları ve İnternet İletişim Hukuku, Seçkin Yayıncılık, İstanbul, 2012
  9. Murat Volkan Dülger, RTÜK Denetimi İnternete Yeni Bir Yasak Mı Getiriyor? RTÜK’e Eklenen 29/A Maddesinin 5651 Sayılı Kanun Kapsamında Değerlendirilmesi, Academia, Ankara, 2019
  10. M. Artuk ARDIÇOĞLU, Türk İdare Hukukuna Yeni Bir Katkı : Erişim Sağlayıcıları Birliği, İnönü Üniversitesi Hukuk Fakültesi Dergisi, 2014
  11. Olgun Değirmenci, Bilişim Suçları, Legal Yayıncılık, Ankara, 2003
  12. Olgun Değirmenci, Netflix’in Sonu mu? Düzenleme – Sansür Sarkacında “Radyo, Televizyon ve İsteğe Bağlı Yayınların İnternet Ortamından Sunumu Hakkında Yönetmelik Taslağı, Terazi Hukuk Dergisi, Ankara, 2019

WEBSİTESİ KAYNAKLARI;

  1. https://help.netflix.com/tr/node/4976
  2. https://www.rtuk.gov.tr/medya-hizmet-saglayicilar/3747/1995/kablo-yayin-lisansi-olan-kuruluslar-listesi-rd-ve-tv-olarak.html
  3. http://www.gazzetta9.com/ozel-haber/rtuk-ten-youtube-ayari
  4. https://www.academia.edu/36256264/6112_SK_29-AileRT%C3%9CKe_verilen_eri%C5%9Fim_yasa%C4%9F%C4%B1_tedbirinin_de%C4%9Ferlendirilmesi.pdf

[1] Billy Baron/Jill H. Ellsworth/Kevin M. Savetz, Internet Unleashed, Çev: Nezihe Bahar/Devrim Türkmen, İstanbul, Sistem Yayıncılık, 1998, s.4; Akbulut, Bilişim Suçları, s.546, 547; Değirmenci, Bilişim Suçları, S.23,24

[2] Ali Osman Özdilek, İnternet ve Hukuk, İstanbul, Papatya Yayıncılık, 2002, s.13

[3] Emrah Birlik, İnternette Erişimin Engellenmesi, 2014

[4] Kayıhan İçel-Yener Ünver, Kitle Haberleşme Hukuku, Beta Yayıncılık, İstanbul, 2009

[5] Emrah Birlik, İnternette Erişimin Engellenmesi, 2014

[6] Barış Günaydın, İnternet Yayıncılığı ve İfade Özgürlüğü, Adalet, Ankara, 2010

[7] 01.08.2019, 30849, Radyo, Televizyon ve İsteğe Bağlı Yayınların İnternet Ortamından Sunumu Hakkında Yönetmelik, m.4/f

[8] Murat Volkan Dülger, Bilişim Suçları ve İnternet İletişim Hukuku, Seçkin Yayıncılık, İstanbul, 2012, s.712

[9] Murat Volkan Dülger, Bilişim Suçları ve İnternet İletişim Hukuku, Seçkin Yayıncılık, İstanbul, 2012, s.724

[10] Murat Volkan Dülger, Bilişim Suçları ve İnternet İletişim Hukuku, Seçkin Yayıncılık, İstanbul, 2012, s.726

[11] https://help.netflix.com/tr/node/4976

[12] M. Artuk ARDIÇOĞLU, TÜRK İDARE HUKUKUNA YENİ BİR KATKI: ERİŞİM SAĞLAYICILARI BİRLİĞİ, İnönü Üniversitesi Hukuk Fakültesi Dergisi, 2014

[13] https://www.rtuk.gov.tr/medya-hizmet-saglayicilar/3747/1995/kablo-yayin-lisansi-olan-kuruluslar-listesi-rd-ve-tv-olarak.html

[14] http://www.gazzetta9.com/ozel-haber/rtuk-ten-youtube-ayari

[15] Olgun Değirmenci, Terazi Hukuk Dergisi, Ankara, 2019

[16] Cankat Taşkın, İnternete Erişim Yasakları, Seçkin Yayınları, Ankara, 2016

[17] Artun Avcı, Türkiye’de İnternet ve İfade Özgürlüğü, Legal Yayınları, İstanbul, 2013

[18] https://www.academia.edu/36256264/6112_SK_29-AileRT%C3%9CKe_verilen_eri%C5%9Fim_yasa%C4%9F%C4%B1_tedbirinin_de%C4%9Ferlendirilmesi.pdf

[19] Olgun Değirmenci, Terazi Hukuk Dergisi, Ankara, 2019

[20] https://www.academia.edu/36256264/6112_SK_29-AileRT%C3%9CKe_verilen_eri%C5%9Fim_yasa%C4%9F%C4%B1_tedbirinin_de%C4%9Ferlendirilmesi.pdf

[21] Olgun Değirmenci, Terazi Hukuk Dergisi, Ankara, 2019

[22] Murat Volkan Dülger, RTÜK Denetimi İnternete Yeni Bir Yasak Mı Getiriyor? RTÜK’e Eklenen 29/A Maddesinin 5651 Sayılı Kanun Kapsamında Değerlendirilmesi, Academia, Ankara, 2019

Begüm BÖREKCİ
Ankara, 2020