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* We are publishing the long version of Fikret İlkiz's article published on Media Ownership Monitor (MOM) website.
I - Constitutional Provisions
According to the Article 35 of the Constitution, "Everyone has the right to own and inherit property. These rights may be restricted by law only for the purpose of public interest. The exercise of the right to property shall not contravene public interest."
In accordance with Article 1 (On the Protection of Property) of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
It is everyone's right to expect the continuity law and the elimination of legal voids that may appear due to some changing conditions. There is a very close connection between the concepts of "legitimate expectations", "legal security", and the "rule of law/supremacy of law". Also, there is no doubt that there is a link between international trade law and human rights.
The underlying element to be considered, in this context, is "equity". Also one should consider the relevant principles such as "predictability", "certainty" and "absence of surprises-absence of arbitrariness", all of which help to create a sense of trust in persons and commercial institutions.
According to the Article 29 of the Constitution, "[p]ublication of periodicals or non-periodicals shall not be subject to prior authorization or the deposit of a financial guarantee. Submission of the information and documents specified by law to the competent authority designated by law is sufficient to publish a periodical. The principles regarding the publication, the conditions of publication and the financial resources of periodicals, and the profession of journalism shall be regulated by law. Any law, whatsoever, on this subject, may not impose any political, economic, financial, and technical conditions obstructing or making difficult the free dissemination of news, thoughts, or opinions."
The Article 30 of the Constitution says: "A printing house and its annexes, duly established as a press enterprise under law, and press equipment shall not be seized, confiscated, or barred from operation on the grounds of having been used in a crime."
II- Radio and Television Broadcasts
The Law on Turkish Radio and Television Corporation (No. 359 Date 24 December 1963) gave the right to establish and operate the television stations to the Turkish Radio and Television Corporation (TRT)
The initial version of the Article 133 of the 1982 Constitution, regarding the radio and television broadcasting, stipulated that radio and television stations could be established only by the State and their administrations would be organized by a neutral public legal entity. Based on this constitutional provision, the Law on Turkey Radio and Television was adopted. (No. 2954 dated 11 November 1983), which repealed the former Turkey Radio and Television Corporation Law No. 359.
According to Law No. 2954, the broadcasting of radio and television broadcasts was in the monopoly of the state. This monopoly would be used by Turkey Radio and Television Corporation.
Article 133 of the Constitution was amended with the Law No. 3913, dated 8 July 1993. This amendment rendered the establishment of radio and television stations and their operation free, under the conditions to be regulated by law. The current version of the Article 133 is as follows:
ARTICLE 133- (As amended on July 8, 1993; Act No. 3913) Radio and television stations shall be established and operated freely in conformity with rules to be determined by law. (Paragraph added on June 21, 2005; Act No. 5370) The Radio and Television Supreme Council, established for the purpose of regulation and supervision of radio and television activities, is composed of nine members. The members are elected, on the basis of number of members allocated to each political party group, by the Plenary of the Grand National Assembly of Turkey from among the candidates, twice the number of which is nominated by political party groups in proportion to their number of members. The formation, duties and powers of the Radio and Television Supreme Council, and qualifications, election procedures and term of office of its members shall be regulated by law. The unique radio and television institution established by the State as a public corporate body and the news agencies which receive aid from public corporate bodies shall be autonomous and their broadcasts shall be impartial.
According to this current version Article 133 of the Constitution, therefore, the establishment and operation of radio and television stations have been released from the state monopoly. Consequently, private enterprises have been allowed to establish and operate private radio and television stations under the conditions to be regulated by law.
After the abolition of the state monopoly with the amendment to the Article 133 of the Constitution, The Law on the Establishment of Radio and Television Enterprises and Their Broadcasts (Law No. 3984, adoption date: 13 April 1994) was published in the official newspaper on 20 April 1994 and entered into force.
The requirements about the company structure and the share rates of the joint-stock companies that are (or will-be) granted radio and television broadcast permits were specified by Article 29 of this law. According to this article, "political parties, associations, labor and employer unions, professional associations, co-operatives, foundations, local governments and companies established or partially owned by local governments, commercial companies, unions, and organizations and enterprises dealing with investment, import, export, marketing and financial affairs shall not be granted radio and television broadcast permit; these enterprises could not be the partner of the enterprises which have been granted radio and television broadcast permit." The Article 29 also regulated the "Structure and Share Ratios" of Private Radio and Television Organizations
According to Article 29 (paragraph: 1 subparagraph: b) of the Law no. 3984, radio and television broadcasting permission was granted to joint stock companies established for the purpose of radio and television broadcasting. Each company could establish only one radio-TV station. According to subparagraph (1) of the same article, radio and television enterprises could not put any provision, contrary to that law, to their main contracts after being granted a broadcast permit. Also these enterprises could not include activities, within their areas of operation, which were incompatible with the radio and television broadcasting.
Furthermore, according to the subparagraph (k) of the first paragraph of the article, the Radio Television Supreme Council would determine, on an annual basis, minimum administrative and financial conditions to be met by the joint stock companies, which were granted radio and television broadcast permit; or by those joint stock companies, which sought to acquire this permit.
The by-law, issued in accordance with this legal regulation, specified the minimum financial and administrative conditions to be met by radio and television corporations. The 4th article of this by-law, which was titled "The Establishment of Private Radio and Television Corporations", introduced the condition that; the private radio-TV stations be established as a joint-stock company, and solely operate within the sphere of activities as specified by the Law no 3984 and this ensuing by-law.
The subparagraph (j) of the first paragraph of Article 29 of the Law No. 3984 required that; any transfer of the shares of a joint stock company, that had been granted radio and television broadcasting permit, be notified to the Supreme Council within one month of the date of the transfer. This notification should include the information about name and surname of the shareholders, shareholding structure and share rates, formed as a result of the transfer of the company. It was necessary to obtain permission from the Supreme Council, by submitting necessary information and documents, before the actions such as, the transfer of these companies to another company, the takeover of another company and the merger with another company.
As a result of these transactions, the contradiction between the provisions of the provisions of this Law in the structure of the company in the period of the Supreme Council of this discrepancy must be eliminated. In case of any contradiction to the provisions of this Law in the formulation of the corporation structure as a result of these procedures, the contradiction had to be eliminated in a time period given by the Supreme Council. Otherwise, the broadcast permission could be annulled.
The original provision of the subparagraph 11 of the Article 29 Alinea 11 of Law no. 3984 was as follows: "Legal and Natural persons publishing newspapers, in Turkey and those who own newspapers according to the press-related legislation, my not hold more than %20 of the shares altogether. This provision also applies to the blood and by-marriage relatives up to third-degree (including) relatives." However, this limitation was removed by the Law no 4756 amending the law no 3984.
In the same way, the original version of the Article 29 of the Law no 3984 included a "tender ban" but this prohibition was also removed by the law no 4756 in 2002. According to the original provision, persons having more than %10 shares in the private radio and television stations were banned from accepting any contracted engagement from the State and other public legal persons, or from the enterprises and corporations with direct or indirect participation of State or public legal persons. Also such shareholders could make any transaction in the stock exchange market. However, all of these limitations were removed by the above-said amendment.
The article 29 of the law no 3984 regulated the ownership of broadcasting, which was on the basis of the "Share". An attempt was made to introduce a system of "Audience Share" by the law no 4756; yet this was annulled by the Constitutional Court, rendering this attempt in vain.
III- Radio and Televisions According to the Law Adopted in 2011
The Law on the Establishment of Radio and Television Enterprises and Their Media Services [1] (No. 6112, adopted on: 15 February 2011) repealed the former law no 3984
To a great extent, this law was prepared in line with the European Council Directive 89/552/EEC of 3 October 1989 on the pursuit of television broadcasting activities (Audiovisual Media Services Directive)
The purpose of the Law no 6112 is to regulate and supervise radio and television broadcasting services and on-demand media services; to ensure the freedom of expression and information; to determine the procedures and principles in relation to the administrative, financial and technical structures and obligations of media service providers and the establishment, organization, duties, competences and responsibilities of the Radio and Television Supreme Council.
Certain definitions in this Law are as follows (Article 3):
"On-demand media service" means the media service provided for the viewing or listening of shows at the moment chosen by the user and at his/her individual request on the basis of a catalogue of shows selected by the media service provider.
"Media service provider" means the legal person who has editorial responsibility for the choice of the content of the radio, television broadcasting and on-demand media services and determines the manner in which it is organized and broadcast.
"Platform Operator" means an enterprise which transforms multiple media services into one or multiple signals and provides the transmission of them, through satellite, cable and similar networks either in an encoded and/or un-encoded mode in a way accessible directly by the viewers.
"Broadcasting Licence" means the certificate of permission issued separately for each broadcasting type, technique and network by the Supreme Council to media service providers on the condition that they meet the provisions stated in this Law and by-laws and other regulations prepared in accordance with this Law in order to allow them to broadcast using any kind of technology via cable, satellite, terrestrial and similar networks.
"Broadcaster" means a media service provider of a television and/or a radio broadcasting service.
According to this law (Article 2), a media service provider will be considered to have been established in Turkey, if the service provider has its head office in Turkey and the editorial decisions pertaining to its media services are taken within the boundaries of Turkey. Yet if the editorial decisions on the media services of a Turkey-based service provider based are taken in another country, which is party to the European Convention on Transfrontier Television, the service provider will be considered to have been established in the country, where a significant part of the workforce involved in the pursuit of the media service activity operates. Same rule applies if the editorial decisions on the media services are taken in Turkey but the head office is in another country which is party to the Convention.
However there are three further regulations on this subject:
- The media service provider is considered to have been established in the country where it has its head office if a significant part of the workforce could not be determined, while a significant part of the workforce involved in the pursuit of the media service activity operates in more than one countries.
- "In cases where a significant part of the workforce involved in pursuit of the media service activity operates in neither of those countries, the media service provider shall be deemed to have been established in Turkey in case it has initially begun its activity in Turkey and it has maintained a stable and effective link with the economy of Turkey."
- If a media service provider has its head office in Turkey but its editorial decisions pertaining to the media service activity are taken in a country which is not party to the European Convention on Transfrontier Television or if editorial decisions on media services are taken in Turkey, but its head office is in a third country which is not party to the Convention, the media service provider will be considered to have been established in Turkey in case a significant part of the workforce involved in the pursuit of the media service activity operates in Turkey.
The Article 19 of the The Law No. 6112 on the Establishment of Radio and Television Enterprises and Their Media Services regulates the "Private Media Service Providers"
This article regulates the "Establishment and proportion of shares" anew.
According to the Article 19/(1-a) "A broadcasting licence shall be granted to the incorporations established in accordance with the provisions of the Turkish Commercial Law for the purpose of exclusively providing radio broadcasting service, television broadcasting service and on-demand media service. The same company might provide only one radio broadcasting service, one television broadcasting service and one on-demand media service. Media service providers shall not insert any provisions contrary to the principles stipulated in this article into their main contracts after the broadcasting licence has been granted. Main contract amendments shall be reported to the Supreme Council within one month."
Therefore, pursuant to this article, the joint-stock companies established according to the provisions of the Turkish Commercial Code, may obtain broadcast licenses, to provide radio and television and on-demand broadcast services. Each joint stock company can provide one radio, one television and one on-demand broadcast service.
Further, according to to the Article 19/(1-b) "Political parties, unions, professional associations, co-operatives, associations, societies, foundations, local administrations and companies established by them or of which they are direct or indirect shareholders, stock broker companies and real or legal persons who are direct or indirect shareholders of these companies shall not be granted broadcasting licence. These establishments shall not directly or indirectly be shareholder of the media service providers."
The foundations were also listed among these subjects, which could not acquire a broadcasting licence. However, the term "Foundations" was removed from the text of the relevant article by the Article 67 of the Law No. 6745 dated 20/8/2016
The shares of the media service providers should be registered on the name of the owners. Redeemed shares shall not be issued in favour of anybody.
Media service providers may issue and offer the capital market instruments to the public under the framework of the Capital Market Law No.2499 and its relevant legislation. In this case, as stipulated by the legislation, consent of the Supreme Council must be obtained before registration with the Capital Market Board. Shares issued to the public do not need to be registered.
A real or legal person can be a partner directly or indirectly to maximum four media service providers holding terrestrial broadcasting licences. However, in case of partnership to more than one media service provider, 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 thirty percent 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 in media service providers in a way that it will be reduced down to the aforesaid rate within a time limit of ninety days of the Supreme Council. For any real or legal person who has not fulfilled the decision of the Supreme Council within the given time limit, the Supreme Council shall impose an administrative fine of four hundred thousand Turkish Liras for the each month of not acting accordingly. The procedures and principles for the implementation of this sub-paragraph shall be determined by the Supreme Council.
For real persons, shares which belong to the spouses, relatives by blood and by marriage up to and including those of third degree will be considered to be appertaining to the same person.
The total direct foreign capital share in a media service provider shall not exceed fifty percent of the paid-in capital. A foreign real or legal person can directly become a partner of maximum two media service providers. If foreign real or legal persons hold shares in companies that are shareholders of media service providers and become 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 have to be the citizens of the Republic of Turkey, and the majority of the votes in the general assemblies of broadcasting enterprises should belong to the real or legal persons having the Turkish citizenship. In main contracts of such corporations, the arrangements ensuring these provisions shall be stated clearly.Domestic or foreign shareholders shall by no means own preference shares.
Morover, the Supreme Council, by getting the opinions of the relevant institutions, may refuse to grant permits by relying on the reasons such as, national security, protection of the public order, or public interest. [2] Acording to a similar provision, the permit application of a media service provider corporation will be refused if its head of the executive, shareholders and members are reported, by the National Intelligency Service, of being in contact or in close-connection with the terrorist organisations. [3]
The Article 20 of the law no 6112 regulates the transfer of shares, transfer of company and company mergers in the joint-stock companies, which are media service providers. According to this provision, the transfer of the shares of an incorporation to which a broadcasting licence has been granted, shall be notified to the Supreme Council within thirty days from the transfer date together with the information about names and surnames of the shareholders, shareholding structure and vote proportions subsequent to the transfer of shares. Before the transfer of a company or a merger, it is obligatory to obtain permission from the Supreme Council with the necessary information and documents and to notify the Supreme Council within thirty days after the realization of the transfer or merger process.
If any contravention of the provisions stipulated in this Law exist in the incorporation structure which occur as a result of the transfer of shares and company and merger, such contravention shall be remedied within a period not exceeding ninety days to be announced by the Supreme Council. Otherwise, the broadcasting licence of the related media service provider shall be revoked.
In mergers, acquisitions and transfer of registered shares, provisions of the Article 19 of this Law, Capital Market Law No. 2499 and relevant legislation provisions, as well as the provisions of Law No. 4054 on The Protection of Competition dated 07/12/1994 are reserved.
IV- Law on the Protection of Competition
Concentration / Monopolization occurs in a variety of ways in the provision of radio and television services.
Horizontal Audiovisual Media Concentration: It is the form of ownership and capital integration between different television and radio broadcasting corporations.
Vertical Audiovisual Media Concentration: It is the form of ownership and capital integration between television broadcasters and their related show producer companies and distribution markets.
Cross Audiovisual Media Concentration: Ownership and capital integration between television broadcasters and other media elements such as print media or internet providers. [4]
Looking at these classifications, one may discern that, besides the classification of Capital Share, Publication License Model and Audience Share Model; there is also a classification of Concentration in Media Property (Ownership) and Concentration in Media Audience .
The reflections of the Systems for the prevention of concentration in radio and television in the law no 4054 on the Protection of Competition and the law no 6112 are as follows:
Audience Sharing Model: The main purpose of this model is to determine the maximum viewing percentage of the total viewing rate of one or more channels within a given time period.
License Ownership Model: In this model, it is regulated whether a broadcaster can have more than one licensed radio and television coporation.In this model, a broadcaster may not have a broadcast license for more than the number of companies specified in the law, or these licence holders may not have control over the principal capital.
Income Share / Frequency Limitation Model: This model imposes an upper limit on the revenue share of a television company in the commercial or total market.
Capital Share / License Model: This model may be implemented in three modes. In the first, an upper limit is imposed for a broadcaster in the capital share of the company. According to the second mode of implementation, the number of licenses available for obtention for each broadcaster is limited. In the third mode, additional restrictions are imposed on the capital shares of more than one broadcast station. [5]
The article 167 of the 1982 Constitution says: "The State shall take measures to ensure and promote the sound and orderly functioning of the markets for money, credit, capital, goods and services; and shall prevent the formation of monopolies and cartels in the markets, emerged in practice or by agreement.".This provision should be considered in the light of the Article 26, paragraph 2 of the Constitution, which, in line with the democracy and social needs, specifies the reasons for the restriction of the freedom of expression and dissemination of thought. Further, the the Article 28 of the Constitution give the State the duty to take necessary measures in order to secure the press and information freedom. Also, the same article states that the same restriction reasons as specified by the Articles 26 and 27 of the Constitution, will apply to this article.
Thus, it is possible to conclude that these constitutional provisions allow the restriction of the share of a real or legal person or capital group in the television or radio establishment. [6]
Law on the Protection of Competitition (No 4054 dated 13 December 1994) has the purpose of prevention of abuse of dominant position by those enterprises which are dominant in the market and the agreements, decisions and practices which prevent, restrict or distort competition within the markets for goods and services. (Article 1)
Turkish Competition Board does the necessary regulations and controls according the provision of this Law.
This Law covers all agreements, decisions and practices which prevent, distort or restrict competition between any undertakings operating in or affecting markets for goods and services within the borders of the Republic of Turkey; abuse of dominance by dominant undertakings in the market; any kind of legal transactions and behavior having the nature of mergers and acquisitions which may significantly decrease competition; and transactions concerning the measures, observations, regulations and supervisions aimed at the protection of competition. (Article 2)
The provisions of this law concern all all commercial companies in terms of their commercial Therefore, the provisions of the Law on the Protection of Competition shall also apply to joint stock companies, which are the broadcasting companies regulated in Article 19 of Law No. 6112. Media service provider joint stock companies radio and television broadcasting activities are also subject to the restrictions stipulated by Law No. 4054.
According to the provisions of the Law no 4054, agreements and concerted practices between undertakings, and decisions and practices of associations of undertakings which have as their object or effect or likely effect the prevention, distortion or restriction of competition di- rectly or indirectly in a particular market for goods or services are illegal and prohibited. (Article 4)
Thus, it is forbidden for the joint stock companies that provide radio and television broadcasts to monopolize and to create dominant positions in order to prevent competition.
Indeed, According to the provisions of the Law no 4054, the abuse of dominant position is the abuse, by one or more enterprises, of their dominant position in a market for goods or services within the whole or a part of the country on their own or through agreements with others or through concerted practices. Such an abuse of dominant position is illegal and prohibited.
Necessary supervision on this subject is made by the Competition Board.
Besides the Article 6 of the Law no 4054, there are some other provisions, in the same law, prohibiting the activities concerning mergers and acquisitions. According to the Competition Law, mergers, acquisitions or joint ventures that create a dominant position, or strengthen the position of an enterprise in a given market. [7] The Competition Board has the duty and competence of supervision and control in terms of this law. It is also competent to prohibit mergers or acquisitions, which may result in the concenteration of media services. It may allow, on the other hand, the mergers that does not create a dominant position. Board's decision on this subject will depend on whether-or-not it assesses a given case as creating a dominant position.
V- Provisions in the Press Law
As mentioned above, publication of periodicals or non-periodicals shall not be subject to prior authorization or the deposit of a financial guarantee. Submission of the information and documents specified by law to the competent authority designated by law is sufficient to publish a periodical (Constitution, Article 29) The principles regarding the publication, the conditions of publication and the financial resources of periodicals, and the profession of journalism shall be regulated by law. The laws, enacted for this purpose, may not impose any political, economic, financial, and technical conditions obstructing or making difficult the free dissemination of news, thoughts, or opinions.
According to the Constitution, the press is free, and shall not be censored. The establishment of a printing house shall not be subject to prior permission or the deposit of a financial guarantee. The State shall take the necessary measures to ensure freedom of the press and information. (Constitution, Article 29)
The Press Law No 5187 dated 9.6.2004 repealed the former Press Law no 5680. [8] This law aims to regulate the freedom of the press and the implementation of this freedom and covers the printing and publication of printed matter. According to the provisions of this law, the printer means the real or corporate body that prints the matter with printing equipment or copies it with other equipment, whereas, the publisher means the real or corporate body that prepares and publishes printed matter. All printed matter must include the following information: the printing location and date, names of the printing facility and publisher if he/she exists, their commercial titles if they exist, and their office addresses. According to the provisions of the Press Law, natural and legal persons and public institutions and organizations may own periodicals. So, there is no restriction regarding the ownership of periodicals, either for natural or legal persons. If the owner of a periodical is also the responsible editor, the owner should meet the requirements specified by the paragraph 2 of Article 5 for the responsible editors. [9] These requirements also apply for the legal representative, if the owner of a periodical is below 18 years of age or restricted; and for the authorized representative, if the owner is a legal person. (Article 6)
According to the Press Law, in order to publish periodicals, it is necessary and sufficient to submit a declaration to the Office of the local Chief Prosecutor, where the headquarters of the management of the relevant periodical is situated. In other words, publishing of periodicals is not subject to permission from the authorities, but subject to "declaration." In order to publish a newspaper or other periodicals, a declaration must be submitted to the Office of the local Chief Prosecutor in order to be recorded. (Press Law Article 7)
The templates of such declarations may be found at the "press units" of the Offices of the Public Prosecutor. A declaration for this purpose should include the following information: the name of the publication and its contents (i.e. whether of political or economic content); the intervals of publication (i.e. whether daily, weekly or monthly); the headquarters of the management; and the names and addresses of the owner, the representative if he/she exists, responsible editor, and the assistant editor if he/she exists; and the form of the publication.
Furthermore, a copy of the documents certifying that the responsible editor and the owner meet the requirements, should be annexed to the declaration. If the owner is a legal person one copy of the, or principle agreement (for the companies) or, the charter (for foundations or associations) should also be annexed to the declaration. Upon receipt of the declaration and its annexes, the Office of the Chief Prosecutor must deliver a notice of delivery to the persons who made the declaration.
The Office of the Chief Prosecutor has the duty to examine the declaration and its annexes. In case of any failure of the conditions about the "responsible editor" as laid down in the Article 5 of the Press Law, or the "ownership" as laid down in the Article 6, or of the lack of necessary documents; the Office of the Prosecutor shall order that the owner of the publication complete all the necessary information or correct untrue information within two weeks after submission of the declaration. In the same way the Office of the Prosecutor may ask the owner to correct untrue information within two weeks after submission of the declaration.
If this order is not fulfilled within two weeks after its notification, the Office of the Prosecutor will petition the Criminal Court of First Instance to order that the publication be stopped. The Criminal Court of First Instance shall then reach a verdict within two weeks at the latest.
If there is a change in the information declared after the declaration, the Office of the Prosecutor must be notified of changes to be made in the declaration within two weeks through a new declaration along with the necessary documents. Such changes may include: the change of the representative of the legal person, the change of publication interval of the periodical from weekly to daily publication, or any other change in the elements included in the declaration.
If a periodical is not published within the space of one year or if not published for a period of three years after submission of its declaration, the declaration shall be considered null and void and consequently the rights entailed revoked.
VI- Publications and Broadcasting on the Internet
On 23 May 2007, "Law No. 5651 on Regulating Broadcasting (Publication) in the Internet and Fighting Against Crimes Committed by Means of Such Broadcasting (Publication)" entered into force in order to regulate the publications or broadcasts in Turkey. [10]
According to Article 1 of the Law, titled "Purpose and Scope", this law regulates the principles and procedures regarding the fight against content, location and access providers with certain crimes committed on the internet, and, obligations and responsibilities of the content provider, domain provider, access provider, and collective usage providers. The law has two aims. The first on is to determine the obligations and responsibilities of the content provider, location provider, access provider, and the other is to determine the principles and procedures related to the fight against certain offenses committed on the Internet via those whose responsibilities and obligations are shown.
Some definitions of the Law are as follows:
Access provider: Access provider means all kinds of natural or legal persons who provide access to the Internet. Access provider is obliged to prevent access of any unlawful content published by any user in accordance with the provisions of this Law. The access provider is obliged to keep the internet traffic data, the duration to be further specified by a by-law, for not less than six months but for no more than two years. The access provider is also obliged to ensure the accuracy, integrity and confidentiality of these data.
The Access provider is obliged to notify, at least three months before terminating its activities, the Information Technologies and Communication Authority, its content providers and its customers. Also the access provider should deliver the records related to the internet traffic data, as per the procedures and principles to be specified by a by-law, to the Technologies and Communication Authority. The access provider is not obliged to check whether the contents of the information accessed through him are unlawful and require responsibility. Internet service providers, who are not a member of this union cannot operate. One may consider that this legal duty of this Union to block access to, is unconstitutional.
Content provider: It refers to natural or legal persons who produce, modify and provide all kinds of information or data provided to users via internet environment. The content provider is responsible for all kinds of content that he/she presented for the use on the internet. The content provider is not responsible for any other content of somebody else that he/she has provided the link for. However, he/she may be responsible according to general provisions, if it is obviously clear that he/she endorses the content that he/she provided the link for, or pursues an aim that the user reach to that content.
Domain provider: It means natural or legal persons providing or operating systems that contain services and content. The domain provider is not responsible for the content appearing in the domain that he/she provides, or to research whether there is an illegal activity in the domain. The domain provider, is responsible for removing the illegal content from publication, if he/she is notified according to the provisions in this Law.
Collective usage provider: A collective usage provider provides the opportunity to use internet in a certain place and for a certain period of time. Collective usage providers for commercial purposes are obliged to obtain permission from the local administrative authority. Information about the permit shall be notified to the Information and Communication Technologies Authority by the local administrative authority within thirty days. Supervision of these information is made by the local administrative authority. Collective usage providers for commercial purposes are obliged to take necessary precautions, as specified by the by-law, for the protection of family and children, prevention of crime and identification of criminals. Content, domain and access providers are obliged to keep the introductory information in a way that is accessible to the users in their own internet environment and within the framework of the principles and procedures determined by the by-law.
The Telecommunication Information Authority was abolished and any reference to the Telecommunication Information Authority by other legislation will be deemed to have been made to the Information Technologies and Communication Authority (ICTA-Bilgi Teknolojileri ve İletişim Kurumu [BTK]) An authorization document shall be issued by the Authority (former Telecommunication Communication Authority / the new ICTA) to the persons who act as domain or access providers, in order to perform relevant activities regardless of whether they have obtained authorization for communication. (Fİ/SD)
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[1] Published in the Official Gazette on 3/3/2011 and no. 27863. For the official English translation see: https://www.rtuk.gov.tr/en/audio-visual-media-law/5350/5139/the-law-no6112-on-the-establishment-of-radio-and-television-enterprises-and-their-media-services-march-3-2011.html Acessed, 19 January 2018
[2] This provision was added to the Article 19 of the Law, by the Decree-Law no.680, dated 02.01.2017. This was adopted by as a law by law no 7072 dated 01.02. 2018 "Law on Adoption by Amending the Decree Law on the Making of Some Regulations within the State of Emergency"
[3] This provision was added to the Article 19 of the Law, by the Decree-Law no.680, dated 02.01.2017. This was adopted by as a law by law no 7072 dated 01.02. 2018 "Law on Adoption by Amending the Decree Law on the Making of Some Regulations within the State of Emergency"
[4] "Commission's Green Paper on Services of General Interest, paragraph 74" Quoted in: .Dr. A. Vahap Darendeli (Judge and Head Radio and Television Supreme Council Deputy Chairman) Medya Yoğunlaşması, Tekelleşmenin Denetimi ve Çoğulculuğun Kurulması,
[5] This article was published as a peer-reviewed article in Turkey Bar Association Journal Published in the January / February 2007
[6] See Darandeli (2007)
[7] Article 7 of the Law no 40545: Merger by one or more enterprises, or acquisition by any undertaking or person from another undertaking-except by way of inheritance-of its assets or all or a part of its partnership shares, or of means which confer thereon the power to hold a managerial right, with a view to creating a dominant position or strengthening its/ their dominant position, which would result in significant lessening of competition in a market for goods or services within the whole or a part of the country, is illegal and prohibited. The Board shall declare, via communiqués to be issued by it, the types of mergers and acquisitions which have to be notified to the Board and for which permission has to be obtained, in order for them to become legally valid.
[8] Published in the Official Gazette on 26 June 2004 - No:25504
[9] Individuals with the following qualifications are eligible for the position of responsible editor: a) At least 18 years of age, b) Resides in or is permanently settled in Turkey, c) A graduate of at least secondary school or its equivalent, d) Not restricted or banned from public services. e) Not to be convicted of defamatory offenses, f) For non-Turkish citizens, the principle of reciprocity applies.
[10] Published in the Official Gazette on 23 May 2007 - No: 26530, adopted on May 4, 2007.
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