The Media and Entertainment Law Review: Turkey

Overview

The media and entertainment sector in Turkey is examined in this chapter and considered in the context of both domestic and global developments. Fundamental rights such as freedom of expression and dissemination of thought, and freedom of the press, are addressed here, together with the regime of limitations that applies in the sector, and including past and current practices. It should be noted that Turkey's position in this area and the approaches taken by the country's courts have also been shaped by the decisions of the European Court of Human Rights (ECtHR).

In addition, the media and entertainment sector is one that has been markedly affected by technological developments such as digitalisation and the widespread use of social media. Thus, in practice, a very active regulatory process combines with extensive self-developed working practices to produce and specify rules for participants in this area. Also, Turkey is not only a significant country in terms of media issues, but also an important market in the entertainment sector. Turkey is a transportation hub between Europe and Asia, and many global companies have manufacturing facilities in Turkey. Therefore, developments and recent changes have to be closely followed to ensure compliance with applicable regulations.

Legal and regulatory framework

Media and entertainment encompasses a large, complex and diverse range of legal disciplines regulated by different pieces of legislation in Turkey. As a result of this complexity and variety, many pieces of legislation from different sources and at different levels come into play, from the constitution to sectoral laws and authority decisions. Therefore, a diligent review is required prior to entering the media and entertainment sector.

That said, the main sources of legislation are constitutional law followed by sectoral laws and secondary legislation. In addition to that, some areas are not yet governed by sector-specific laws and secondary legislation, thus general laws and court decisions also serve as guides for practice in the sector. Finally, because of rapid technological developments, new pieces of legislation may be necessary to satisfy new needs and provide responses to the new issues arising. It is also important to note that new regulations and legislation may be affected by social customs and the country's political situation.

The following are the main laws:

  1. Constitution of the Republic of Turkey dated 1982 No. 2709 (the 1982 Constitution);
  2. international treaties (e.g., European Convention on Human Rights, European Convention on Transfrontier Television);
  3. Press Law No. 5187 (the Press Law);
  4. Law on the Right to Obtain Information No. 4982;
  5. Law on Radio and Television of Turkey No. 2954;
  6. Anti-Terror Law No. 6008 (the Anti-Terror Law);
  7. Law on Meetings and Demonstrations No. 2911;
  8. Law on Intellectual and Artistic Works No. 5846 (the Intellectual Property (IP) Law);
  9. Industrial Property Law No. 6769;
  10. Law on Protection of Competition No. 4054 (the Competition Law);
  11. Consumer Protection Law No. 6502 (the Consumer Protection Law);
  12. Law on Electronic Communications No. 5809 (the Electronic Communications Law);
  13. Law on Universal Service No. 5369 (the Universal Service Law);
  14. Law on the Establishment of Radio and Television Enterprises and Their Broadcasting Services No. 6112 (the Radio, Television and Broadcasting Law);
  15. Law on Digital Services Tax No. 7194 (the Digital Services Tax Law);
  16. Law on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publications No. 5651 (the Internet Law);
  17. Turkish Criminal Code No. 5237 (the Criminal Code);
  18. Turkish Code of Obligations No. 6098 (the Code of Obligations);
  19. Turkish Civil Code No.4721 (the Civil Code); and
  20. Turkish Commercial Code No. 6102 (the Commercial Code).

    III Free speech and media freedom

    i Protected forms of expression

    The 1982 Constitution provides for the rights of freedom of thought and opinion, and freedom of expression and dissemination of thought. These rights are regulated in accordance with the European Convention on Human Rights and all individuals are subject to these rights. According to the principle of freedom of expression and dissemination of thought, everyone has the right to express and disseminate his or her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty to receive or impart information or ideas without interference by official authorities. The 1982 Constitution also regulates freedom of the press and accordingly the press is free and shall not be censored. In Turkey, the establishment of a printing house is not subject to obtaining prior permission or the deposit of a financial guarantee.

    The exercise of these freedoms may be restricted for purposes of national security, public order, public safety, safeguarding the basic characteristics of the republic and the indivisible integrity of the state, territory and nation, preventing crime, punishing offenders, withholding information duly classified as state secrets, protecting the reputation or rights and privacy and family life of others, protecting professional secrets as prescribed by law, and ensuring the proper functioning of the judiciary.

    Furthermore, defamation may be seen as another restriction on freedom of the press. The Criminal Code regulates defamation as an offence against honour. In this respect, any person who acts with the intention to harm the honour, reputation or dignity of another person through concrete performance or by giving the impression of intent may be convicted. As regards cases of the commission of an offence with defamatory intent, the following are qualified as forms of offence: (1) acts of insult committed against a person because of that person declaring, altering or disseminating his or her religious, political, social or philosophical beliefs, thoughts or convictions, or practising in accordance with the requirements and prohibitions of that person's religion; and (2) acts of insult whose subject matter relates to values held sacred, expressed in cognisance of the religion with which a person is connected. Also, the Anti-Terror Law prohibits propagandising for a terrorist organisation and, if the offence is committed via the press and publishing organs, the sentence increases. Similar provisions are also contained in the Law on Meetings and Demonstrations No. 2911.

    ii Newsgathering

    In Turkey, many lawsuits are filed against members of the press by individuals who are celebrities or otherwise in the public eye. The Supreme Court and the Constitutional Court examine each case and evaluate them according to the details of the case. These courts apply certain criteria when evaluating limits on the independent press and the balance between the rights to privacy and to freedom of expression. These criteria are as follows:

  21. whether the news, video, voice recording or photograph was made public by an individual;
  22. the way or method employed by the press (whether the tone of news reporting is aggressive or accusatory, whether it includes comments, opinion, etc., or indicates the source of the news information);
  23. whether the content of the news is in accordance with the apparent truth;
  24. the nature of a subject's identity (e.g., celebrity, politician);
  25. whether news content is a matter of public interest and public concern (e.g., the Supreme Court has stated that a phone call between the senior director of a holding company and a senior bureaucrat in the Ministry of Treasury and Finance regarding a decrease in the tax debt is a matter of public interest); and
  26. whether the subject of news is up to date.

    The above-mentioned criteria are used in assessing whether the press has applied the balance test and to determine whether reporting is proportionate. The courts also consider freedom of the press to include not only obtaining and disseminating information, and criticising, interpreting and creating works, but also access to news information. The Criminal Code regulates offences against privacy and confidentiality of personal life; however, the balance test between the rights of individuals and the public interest must be provided to ensure that acts are warranted and do not constitute an offence.

    In this respect, the main key or principle is the public interest considered against the possible violation of the right to privacy. Also, the evaluation of the public interest is not the same in every particular case. The Constitutional Court has adopted the ECtHR approach taken in its 'Princess Caroline decision'2 and the identity of the celebrity may affect a decision as to the existence of a public interest element.

    iii Freedom of access to government information

    The nature of a piece of government information will determine the applicable limits or restrictions on access to it. The 1982 Constitution specifies that anyone who writes any news reports or articles that refer to classified state secrets, or has them printed, and anyone who prints or transmits such news reports or articles to others for the above purposes, shall be held responsible under the law regarding to these offences. Also, the Criminal Code regulates disclosure of information relating to public security and political interests of the state as offences.

    Conversely, access to government information that is not classified as state secrets is regulated under the Law on the Right to Obtain Information No. 4982. Pursuant to this Law, everyone has the right to information. Foreigners domiciled in Turkey and foreign legal entities operating in Turkey can also exercise the right in this Law, on the condition that the information they require relates to them or their field of activity, and on the basis of the principle of reciprocity. Institutions are required to apply administrative and technical measures to provide every kind of information and document for applicants (with the exceptions set out in the Law) and to review and decide on applications for access to information promptly, effectively and correctly.

    There are provisions that regulate the application procedure, the nature of the information or document that can be requested, access to information or documents, time limits for access to information or documents, responses to applications (rejection or acceptance), the procedure for appeal and the restrictions on access to information.

    The following are subject to restrictions on access and are outside the scope of the right to information:

  27. information and documents that qualify as state secrets, disclosure of which will clearly cause harm to the security of the state or foreign affairs, or national defence and national security or the economic interests of the state, or will cause unfair competition or enrichment;
  28. information and documents regarding the duties and activities of civil and military intelligence units;
  29. information and documents that will unjustly interfere with the health records, private and family life, honour and dignity, and economic and professional interests of an individual;
  30. information and documents that will violate the privacy of communications;
  31. information and documents qualified in law as commercial secrets;
  32. commercial and financial information obtained by institutions from private or corporate persons on condition of remaining secret; and
  33. information and documents of institutions that do not concern the public and solely concern the institutions' personnel and internal affairs.

    Also, access to information or documents pertaining to judicial investigations or prosecutions and administrative investigations is limited. For example, information or documents relating to administrative investigations conducted by administrative authorities, and which would clearly violate the right of privacy of the individuals concerned, or would disclose a source of information that needs to be kept secret or endanger the procurement of similar information in connection with an investigation, are outside the scope of the Law.

    iv Protection of sources

    In Turkey, the Press Law provides protection for news sources. Pursuant to this, the owner of the periodical, the editor responsible and the owner of the publication cannot be forced either to disclose their news sources or to legally testify on this issue. This provision is a consequence of the European Convention on Human Rights and the approach taken by the ECtHR. In this respect, the Supreme Court and the Constitutional Court make references to the decisions of the ECtHR and undertake to protect news sources as a requirement of a democratic society. In particular, the ECtHR decision in Goodwin v. United Kingdom is one of the cornerstones of the Constitutional Court's practice and approach.

    In this respect, court practice in Turkey highlights that Article 10 of the European Convention on Human Rights protects not only the substance and content of information and ideas, but also the means by which they are conveyed. According to this approach, it is accepted that if news sources are not protected, the press cannot adequately perform its duty of providing accurate and reliable information to the public, and therefore cannot function as the public watchdog for society, a function considered to be of vital importance for a democratic society in the Roemen and Schmit v. Luxembourg decision. In addition to this, a recent Constitutional Court decision3 stipulated that the press should check whether it has done sufficient research on the accuracy of factual claims it puts forward and thus determine whether it has fulfilled its duty and responsibility to provide accurate and reliable information to the public in good faith and in accordance with the ethics and principles of journalism regarding statements containing factual allegations. In conducting a check of this kind, the source of news is immaterial, nor does the identity of the source prove the accuracy of the allegations. In this case, it was not possible to conduct an audit according to the principle of confidentiality of news sources or evaluate the extent to which the journalist could trust the information obtained (i.e., without forcing the journalist to reveal the identity of the person who provided the documents).

    v Private action against publication

    The majority of claims that arise from unlawful publication of material are based on the violation of an individual's personality right. The Civil Code regulates claims regarding the protection of personality. Individuals who are the subject of an unlawful publication or breach of privacy may file a lawsuit as stipulated in the Civil Code. Under the Civil Code, the individual subject to an assault on his or her personal rights may claim from the judge protection against those who made the assault. Each assault against personal rights is considered contrary to the law in the absence of the assent of the person whose personal right is infringed, unless the infringement is based on any of the reasons relating to private or public interest for which the law confers authorisation.

    There are three actions available under Article 25 of the Civil Code: (1) an order against the defendant to prohibit a threatened infringement; (2) an order to cease an existing infringement; and (3) a declaration that an infringement is unlawful if it continues to have an offensive effect.

    In addition to these actions, the claimant may also request publication or notification of the correction or the judgment to the third parties. The right of the claimant to demand compensation for material and non-material damage and to request the transfer, in the claimant's favour, of gains obtained from the unlawful assault, under the provisions stipulating negotiorum gestio (i.e., permitting management of or interference with the business or affairs of another without authority), is hereby reserved.

    With respect to lawsuits, there is no specific provision regarding burden of proof. Thus, the burden of proving the existence of an alleged fact rests with the person who derives rights from that fact.

    Also, the 1982 Constitution and the Press Law regulate the right of rectification and reply. The right of rectification and reply shall be accorded only in cases where personal reputation and honour are injured or in cases of publication of unfounded allegations. If a rectification or reply is not published, the judge decides, within seven days of an appeal by the individual involved, whether or not this publication is required.

    vi Government action against publication

    In Turkey, unfortunately, there have been many political incidents such as military coups and terrorist activity that have affected the Turkish press and journalism over the years. In the past, many of these incidents have resulted in prison sentences for journalists and the closure of many newspapers and publishing houses following criticism of government policies, politicians and the economy, or for advocating communism. More recently, many print newspapers, radio stations and television channels were shut down after the military coup attempt in 2016 and many people arrested, including academics and members of the press.

    It is not possible to say that all the above-mentioned arrest or closure decisions are lawful and in accordance with the requirements of a democratic society. Having said that, the constitutional law regarding the freedom of the press and freedom of expression and dissemination of thought does provide for a regime of restrictions. In this respect, the exercise of these freedoms may be restricted for purposes of national security, among others, as noted in Section III.i. In addition to this, periodical and non-periodical publications may be seized by order of a judge in the course of ongoing investigations or in prosecuting crimes specified by law, or by order of a competent authority explicitly designated by law, in situations where delay may constitute prejudice to the protection of the indivisible integrity of the state, territory and nation, national security, public order or public morals, and for the prevention of crime.

    The regime of restrictions includes unclear and vague expressions such as national security, public order, public safety, etc. As a requirement of a democratic society, therefore, each specific case should be evaluated in detail and where there is deemed to be cause to impose a restriction, this should be clearly explained in accordance with the principles of the regime restricting fundamental rights. The Supreme Court and the Constitutional Court also evaluate the requirements of democratic society and treat each particular case according to the principle of proportionality. However, unlawful implementations of restrictions or unjust treatment may continue to occur or remain in place, given the extended time frames that characterise the judicial process. Accordingly, there have been many ECtHR decisions in favour of Turkish journalists, writers and other members of the press, with findings of violations of the freedom of the press and freedom of expression and dissemination of thought.

    IV Intellectual property

    i Copyright and related rights

    In Turkey, copyrights are protected under the IP Law. According to Turkish law, protection is also possible under general provisions such as those on unfair competition. The IP Law covers the following areas: (1) science and literature; (2) music; (3) fine art; and (4) cinema. These categories are numerus clausus, but there are some subcategories such as computer software that are listed under scientific and literary works. Ideas and methods cannot benefit from copyright protection. Ideas that produce solutions to a technical problem can only be protected by patent legislation. The subject of the protection is the expression of the ideas. Note that the first owner of a work can only be the author or, in other words, the individual who is the creator of a copyright in Turkey.

    IP cases in Turkey are handled by specific IP courts (both IP civil courts and IP criminal courts). Judges in those courts handle only IP cases, which creates a more predictable litigation and enforcement environment in Turkey.

    Further, Turkish IP law is closely aligned with EU law and international norms. Turkey is a signatory to key treaties and conventions, including the Berne Convention for the Protection of Literary and Artistic Works and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations.

    Registration is not required to establish a copyright. Note that cinematographic and musical works and video games (since video games are accepted as cinematographic works by the Council of State) must be registered with the General Directorate of Copyrights, part of the Ministry of Culture and Tourism, to exploit these rights and facilitate proof of ownership but not for creation of the rights.

    There is no need to file an application to gain copyright protection as it exists automatically when the work is created. However, a timestamp can help prove the time of creation. Right holders generally apply to the Ministry of Culture and Tourism to register works, and this helps prove the ownership and creation date of the work. Software, games, books and other intellectual and artistic works can be subject to this optional registration. Certification by a notary public is also common practice in Turkey to prove the creation date of a work. Copyright protection starts from the creation of the work and lasts for 70 years after the author's death.

    ii Personality rights

    Pursuant to the Civil Code, the right of publicity is also protected under personality rights as the right of the individual whose photo has been taken in Turkey. Under the IP Law, individuals' publicity rights are also protected against third-party use of their publicity rights for the purposes of advertising, business or activities of a similar nature. The context of the protection is not limited – every element that identifies the individual can be included in the scope of the protection. Pursuant to the legislation, even if pictures and portraits do not qualify as works, they may not be exhibited or disclosed to the public in any other way without the consent of the person depicted in the picture or portrait or, in the event of the subject's death, without the consent of the person's heirs. However, consent is not necessary for (1) pictures of persons who have played a role in the political and social life of the country, (2) pictures of parades, official gatherings or public meetings at which the depicted persons participated, and (3) pictures relating to current events, radio and film news reports.

    Having said that, the above-mentioned protection is not different from that provided by the personality rights stipulated in the Civil Code. In this respect, an individual whose personality rights have been violated may seek an order from the courts prohibiting the infringement and request compensation for damage from the defendant under tort liability pursuant to the Code of Obligations. Note that criminal proceedings are also applicable for violation of privacy under the Criminal Code.

    iii Unfair business practices

    Titles and distinctive signs; sign, image and sound; and letters

    Rights on titles and distinctive signs, on sign, image and sound, and on letters are protected according to the unfair competition rules under the IP Law, as follows:

  34. The title and distinctive signs of a work and the form of the reproduced copies of the work may not be used in another work or in its reproduced copies in such a way as to give rise to confusion.
  35. Any person who fixes signs, images or sounds on a device permitting the transmission of those elements, or who lawfully reproduces or distributes these for commercial purposes, may prohibit the reproduction or distribution of the same signs, images or sounds by another person using the same means.
  36. Letters, memoirs and similar writings may not be published without the consent of their authors.

    There is no requirement to qualify these forms as works. Also, the unfair competition rules are also applicable where people infringing the provisions and carrying out unfair business practices are not merchants.

    Unfair competition

    The Commercial Code also regulates unfair competition in the following categories (note, however, that these are exemplars, not numerus clausus, and the scope of regulation is not limited to these six categories):

  37. dishonesty in advertisements and sales methods, and other unlawful acts;
  38. directing third parties to breach or terminate their contracts with other businesses;
  39. unauthorised use of others' business products;
  40. unlawfully disclosing production and business secrets;
  41. non-compliance with business conditions; and
  42. applying terms and conditions dishonestly.

Individuals whose customers, credit, professional reputation, commercial activities or other economic interests are damaged or who potentially face a danger of such damage because of unfair competition may file the following types of lawsuit: (1) declaratory lawsuit; (2) prevention of unfair competition; (3) removal of effects arising from unfair competition; and (4) a request for compensation.

Commercial practices by social media influencers

The Consumer Protection Law and the Regulation on Commercial Advertisements and Unfair Practices (the Regulation) regulate conduct that may be deemed unfair, and they include protections against unfair business practices. Also, this new era of marketing has brought new problems and solutions. In this regard, the Ministry of Commerce published the Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers, which was accepted in Commercial Board decision No. 2021/2 of 4 May 2021. The Guidelines determine the procedures and rules regarding commercial advertisements made by social media influencers.

Free speech and media freedom

i Protected forms of expression

The 1982 Constitution provides for the rights of freedom of thought and opinion, and freedom of expression and dissemination of thought. These rights are regulated in accordance with the European Convention on Human Rights and all individuals are subject to these rights. According to the principle of freedom of expression and dissemination of thought, everyone has the right to express and disseminate his or her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty to receive or impart information or ideas without interference by official authorities. The 1982 Constitution also regulates freedom of the press and accordingly the press is free and shall not be censored. In Turkey, the establishment of a printing house is not subject to obtaining prior permission or the deposit of a financial guarantee.

The exercise of these freedoms may be restricted for purposes of national security, public order, public safety, safeguarding the basic characteristics of the republic and the indivisible integrity of the state, territory and nation, preventing crime, punishing offenders, withholding information duly classified as state secrets, protecting the reputation or rights and privacy and family life of others, protecting professional secrets as prescribed by law, and ensuring the proper functioning of the judiciary.

Furthermore, defamation may be seen as another restriction on freedom of the press. The Criminal Code regulates defamation as an offence against honour. In this respect, any person who acts with the intention to harm the honour, reputation or dignity of another person through concrete performance or by giving the impression of intent may be convicted. As regards cases of the commission of an offence with defamatory intent, the following are qualified as forms of offence: (1) acts of insult committed against a person because of that person declaring, altering or disseminating his or her religious, political, social or philosophical beliefs, thoughts or convictions, or practising in accordance with the requirements and prohibitions of that person's religion; and (2) acts of insult whose subject matter relates to values held sacred, expressed in cognisance of the religion with which a person is connected. Also, the Anti-Terror Law prohibits propagandising for a terrorist organisation and, if the offence is committed via the press and publishing organs, the sentence increases. Similar provisions are also contained in the Law on Meetings and Demonstrations No. 2911.

ii Newsgathering

In Turkey, many lawsuits are filed against members of the press by individuals who are celebrities or otherwise in the public eye. The Supreme Court and the Constitutional Court examine each case and evaluate them according to the details of the case. These courts apply certain criteria when evaluating limits on the independent press and the balance between the rights to privacy and to freedom of expression. These criteria are as follows:

Intellectual property

i Copyright and related rights

In Turkey, copyrights are protected under the IP Law. According to Turkish law, protection is also possible under general provisions such as those on unfair competition. The IP Law covers the following areas: (1) science and literature; (2) music; (3) fine art; and (4) cinema. These categories are numerus clausus, but there are some subcategories such as computer software that are listed under scientific and literary works. Ideas and methods cannot benefit from copyright protection. Ideas that produce solutions to a technical problem can only be protected by patent legislation. The subject of the protection is the expression of the ideas. Note that the first owner of a work can only be the author or, in other words, the individual who is the creator of a copyright in Turkey.

IP cases in Turkey are handled by specific IP courts (both IP civil courts and IP criminal courts). Judges in those courts handle only IP cases, which creates a more predictable litigation and enforcement environment in Turkey.

Further, Turkish IP law is closely aligned with EU law and international norms. Turkey is a signatory to key treaties and conventions, including the Berne Convention for the Protection of Literary and Artistic Works and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations.

Registration is not required to establish a copyright. Note that cinematographic and musical works and video games (since video games are accepted as cinematographic works by the Council of State) must be registered with the General Directorate of Copyrights, part of the Ministry of Culture and Tourism, to exploit these rights and facilitate proof of ownership but not for creation of the rights.

There is no need to file an application to gain copyright protection as it exists automatically when the work is created. However, a timestamp can help prove the time of creation. Right holders generally apply to the Ministry of Culture and Tourism to register works, and this helps prove the ownership and creation date of the work. Software, games, books and other intellectual and artistic works can be subject to this optional registration. Certification by a notary public is also common practice in Turkey to prove the creation date of a work. Copyright protection starts from the creation of the work and lasts for 70 years after the author's death.

ii Personality rights

Pursuant to the Civil Code, the right of publicity is also protected under personality rights as the right of the individual whose photo has been taken in Turkey. Under the IP Law, individuals' publicity rights are also protected against third-party use of their publicity rights for the purposes of advertising, business or activities of a similar nature. The context of the protection is not limited – every element that identifies the individual can be included in the scope of the protection. Pursuant to the legislation, even if pictures and portraits do not qualify as works, they may not be exhibited or disclosed to the public in any other way without the consent of the person depicted in the picture or portrait or, in the event of the subject's death, without the consent of the person's heirs. However, consent is not necessary for (1) pictures of persons who have played a role in the political and social life of the country, (2) pictures of parades, official gatherings or public meetings at which the depicted persons participated, and (3) pictures relating to current events, radio and film news reports.

Having said that, the above-mentioned protection is not different from that provided by the personality rights stipulated in the Civil Code. In this respect, an individual whose personality rights have been violated may seek an order from the courts prohibiting the infringement and request compensation for damage from the defendant under tort liability pursuant to the Code of Obligations. Note that criminal proceedings are also applicable for violation of privacy under the Criminal Code.

iii Unfair business practices

Titles and distinctive signs; sign, image and sound; and letters

Rights on titles and distinctive signs, on sign, image and sound, and on letters are protected according to the unfair competition rules under the IP Law, as follows:

Competition and consumer rights

i Competition

The Competition Law regulates merger control in Turkey and authorises the Competition Board (the Board) to determine which mergers must be notified to become legal. Additionally, Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board determines the details of the types of mergers that are subject to the Board's approval.

Moreover, companies that hold a broadcasting licence must obtain approval from the Radio and Television High Council (RTÜK) prior to a merger or notify RTÜK within 30 days of the transaction. RTÜK is the independent governing body for radio, television and over-the-top (OTT) broadcasting.

One of the leading deals of 2020 was the merger between Turkcell, a technology, media and communications (TMT) company, and the Turkey Wealth Fund. When the sectoral breakdown of Turkey's mergers and acquisitions transactions in 2020 is analysed, TMT seems to emerge as one of the leading sectors in terms of transaction volumes.4

ii Consumer protection

The Consumer Protection Law and the Regulation are the main pieces of legislation governing broadcast media advertising.

The aim of the Regulation is to implement procedures and principles to be followed by advertisers, advertising agencies, media companies and all individuals, institutions and agencies involved in advertising and commercial practices and to set principles for inspection and to protect consumers against unfair commercial practices. The prohibition of unfair commercial practices, misleading advertisements, misleading omissions and aggressive commercial practices all fall within the scope of the Regulation.

In November 2020, the Advertisement Board unanimously rendered decisions stating that advertised products bearing the expressions 'LGBT', 'Love is Love' and 'Pride', along with the rainbow motif, should be presented for sale with the 18+ mark. Furthermore, by way of a sanction, the Advertisement Board decided to suspend advertising for these products and promotions, on the basis of protecting children from harmful content.

As noted above, the Ministry of Commerce recently published its Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers.

iii Net neutrality

There is no explicit legislation regarding the principle of net neutrality in Turkey. However, with the Electronic Communications Law and the Universal Service Law and other regulations, Turkey aims to ensure the provision of electronic communications services in a non-discriminatory and transparent manner, and to preserve and promote consumer rights and fair competition between operators.5 Additionally, the Information Technologies and Communications Authority (ICTA) 2019–2023 Strategic Plan aims to provide and develop effective and sustainable competition, and eliminate the application of anticompetitive or restrictive practices by internet service providers.

Pursuant to the Radio, Television and Broadcasting Law, the ICTA and RTÜK are the regulatory authorities with comprehensive powers over OTT services and providers, and are charged with, among other duties, supervising the content provided via OTT services. The ICTA's content supervisory authority is limited to matters arising under the Internet Law and its secondary legislation and from consumer complaints. The authority of the RTÜK is much broader.

Last year, the ICTA issued its resolution on Procedures and Principles on Social Network Providers, in the Official Gazette of 2 October 2020. Pursuant to this resolution, foreign social network providers whose service is accessed from Turkey by more than 1 million daily users must appoint at least one representative in Turkey. In this context, on 1 October 2020, platforms suitable for social interaction such as Facebook, Twitter, YouTube and TikTok were notified by the ICTA of their obligation to appoint a representative and, pursuant to the Internet Law, administrative fines of 10 million Turkish lira were imposed on the principal social network providers for failing to fulfil this obligation within 30 days of the date of notification. Currently, most of the big social media companies, including OTT companies such as Netflix and Amazon Prime Video, have decided to appoint a representative in Turkey.

Digital content

The Internet Law regulates obligations and liabilities in relation to content, access and hosting providers, internet service providers (or access providers), public use providers and social network providers. Further, it sets out certain requirements specific to content posted online.

Content providers (i.e., real persons or legal entities who create, modify or provide all manner of information or data provided to users through the internet medium) are responsible for the content they have posted on the internet.

Hosting providers (i.e., real persons or legal entities who provide or operate systems that host services and content) are not obliged to check the content posted. However, upon being informed of illegal content, they must remove that content.

Access providers (i.e., real persons or legal entities who provide their users with access to the internet environment) must block access to illegal content after being informed of that content.

An internet service provider must block access to content only if there is a corresponding content or site takedown decision issued by a court. After a court orders the removal of content or the blocking of access to a website, the decision is sent to the Service Providers Union to apply the decision. Internet service providers that do not apply the order within four hours are liable to an administrative fine.

Finally, domestic and foreign digital service providers that generate income from all types of online advertising services offered in the digital environment, or sale of any audio, visual or digital content in the digital environment in Turkey, must pay 7.5 per cent of their revenue in tax, pursuant to the Digital Services Tax Law.

Contractual disputes

In Turkey, copyrights are mainly protected under the IP Law. As detailed above, there is no need to file an application to gain copyright protection as it exists automatically upon the work being created. However, to make it easier to prove ownership and the creation date of a work, right holders generally apply to the Ministry of Culture and Tourism for the optional registration of works such as software, games and books.

To enforce rights in the event of an infringement against a registered or unregistered copyright, it is advisable firstly to send a cease-and-desist letter from a notary public, as this may lead to an easy and speedy remedy for the IP owner. If infringement continues or if an IP owner wants to move forward with enforcement, the next step would be to request a determination of evidence from a civil court or request a search warrant from a criminal court to conduct raids and secure evidence.

As noted in Section IV, IP cases are handled by specific IP courts in Turkey and these are located in most large cities. Judges in those courts handle only IP cases, either civil or criminal, providing a coherent enforcement environment nationally.

Turkish courts have jurisdiction in IP infringement cases if the IP right is registered in Turkey, the defendant resides in Turkey or the tortious act is committed in Turkey.

As of 1 January 2019, mediation for commercial disputes regarding receivables and compensation claims has become mandatory in Turkey. In this regard, the IP right owner must complete the applicable mandatory mediation proceedings before filing a lawsuit in relation to a commercial payment claim.

Year in review

As a result of the covid-19 pandemic, most forms of entertainment, such as cinema, concerts and museums, have moved to digital platforms. With this change, issues regarding copyright protection have had to be considered. It has become significantly important for agreements now to include provisions regulating digital platforms.

To provide an example, if the agreement on the financial rights transfer of a publication only provides for Turkey, it will not be possible to publish the publication abroad. Similarly, if the work is allowed to be published only in certain languages, it is not going to be possible to publish it in any other language on an online platform.

Outlook

Pursuant to the Radio, Television and Broadcasting Law, RTÜK determines the List of Major Events to ensure that national and international sports and cultural events considered of great importance for society will be broadcast live or via a recording, by television channels that broadcast to the general public free of charge and without encryption. On 5 September 2021, RTÜK announced that it would update the List of Major Events.

Also, the 11th Development Plan announced by the government sets out certain goals to be achieved by 2023. Several provisions in the Plan may have an impact on the media sector and especially OTT services, as the Plan seeks to limit the negative influence of the media on families, which may require stricter oversight of OTT services and providers.

Footnotes

1 Hatice Ekici Tağa and Burak Özdağıstanli are managing partners at Özdağıstanli Ekici Attorney Partnership.

2 Von Hannover v. Germany (no. 2) [GC] – 40660/08 and 60641/08.

3 Constitutional Court decision No. B 2014/3494 T 27 February 2019.

5 BİLGİ Information Technology Law Institute, Net Neutrality, Turkey, and Beyond – https://itlaw.bilgi.edu.tr/media/2019/11/15/-%20Net%20Neutrality%20Report%20-_S6VtVzA.pdf.

The Law Reviews content