TMT Comparative Guide - Part 1

1. Legal and enforcement framework

1.1. Which legislative and regulatory provisions govern the following in your jurisdiction: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?

(a) Telecommunications

The Electronic Communications Law (5809) regulates the telecommunications sector in Turkey.

In general, the Electronic Communications Law covers:

• the provision of electronic communications services and the construction and operation of the infrastructure and the associated network systems thereof;
• the manufacture, import, sale, construction and operation of electronic communications equipment and systems; and
• the planning and assignment of scarce resources including frequency, and the regulation, authorisation, supervision and reconciliation activities relating to such issues.

The following regulations and instruments also apply:

• the Electronic Signature Law (5070);
• the Regulation on Processing and Protection of Personal Data in the Electronic Communications Sector;
• the Regulation on Access and Interconnection;
• the Regulation on Spectrum Management;
• the Regulation on the Network and Information Security in the Electronic Communications Sector;
• the Regulation on Consumer Rights for Electronic Communications Sector;
• the Regulation on Authorisation in Electronic Communications Sector;
• Presidential Circular 2019/12 on Information and Communication Security Measures; and
• sector-specific communiqués and relevant authorities' decisions.

General laws and regulations also have relevance, such as:

• the Commercial Code (6102);
• the Capitals Markets Law (6362);
• the Law on the Regulation of E-commerce (6563);
• the Law on the Protection of Personal Data (6698); and
• the Criminal Procedural Law (5271).

(b) Internet

The most comprehensive internet-related statute is the Law on Regulation of Publications on the Internet and Combating Crimes Committed by Means of Such Publication (5651) (‘Internet Law').

In addition, the following regulations govern the Internet in Turkey:

• the Regulation on the Procedures and Principles Regarding the Regulation of Broadcasts on the Internet;
• the Regulation on Internet Mass Use Providers, which sets out the liabilities and obligations of internet mass use providers (eg, employers are subject to this regulation if they provide internet access to employees in the workplace); and
• for cybercrime, the Criminal Code.

Other related regulations include:

• the Law on the Protection of Personal Data (6698), which is particularly relevant since a significant proportion of the data collected through the Internet is personal data;
• the Law on the Regulation of Electronic Commerce (6563), which governs e-commerce platforms and digital marketing;
• the Law on the Protection of Competition (4054), which applies to digital platform markets in Turkey; and
• the Law on Intellectual and Artistic Works (5846), which protects IP rights on the Internet and guards against piracy.

In addition, in May 2022, the government issued the Law Proposal Amending the Press Law and Certain Other Laws (‘Anti-disinformation Law'), which would amend:

• the Internet Law;
• the Electronic Communications Law;
• the Criminal Code; and
• the Press Law.

The Anti-disinformation Law was approved by the Grand National Assembly of Turkey on 13 October 2022 and became effective as of 18 October 2022.

(c) Media

The key regulations governing the media sector in Turkey are:

• the Law on the Establishment and Broadcasting Services of Radio and Television Enterprises (6112);
• the Radio and Television Law (2954);
• the Regulation on Broadcasting via Cable Networks (27965);
• the Regulation on Broadcasting via Satellite (27965);
• the Regulation on Broadcasting via Terrestrial Licence and Tender Procedures (28462);
• the Regulation on Broadcasting Radio, Television and On-demand via Internet (30849);
• the European Convention on Transfrontier Television;
• the Law on Radio and Television Incomes (3093); and
• the Internet Law.

(d) Social media

Most of the regulations mentioned in question 1.1(b) also apply to social media.

The Internet Law sets out the rules governing social media; while Decision 2020/DK-İD/274 imposes obligations on social network providers.

In May 2021, the Ministry of Commerce published the Guidelines on Commercial Advertising and Unfair Commercial Practices by Social Media Influencers, which determine the procedures and rules on commercial advertising by social media influencers.

In addition, the recently introduced and adopted Anti-disinformation Law includes provisions that affect social network providers.

1.2. Which bodies are responsible for enforcing the applicable laws and regulations in the relevant sectors? What powers do they have?

(a) Telecommunications

The key authorised bodies are:

• the Ministry of Transport and Infrastructure;
• the Information and Communication Technologies Authority (ICTA); and
• the Digital Transformation Office.

Although the Ministry of Transport and Infrastructure mainly has policymaking powers, the ICTA is the most influential body with regulatory and executive powers.

The Ministry of Transport and Infrastructure has the following powers and duties:

• setting strategies and policies regarding electronic communications services which are based on scarce resources such as numbering, domain names, satellite positions and frequency allotment;
• determining objectives, principles and policies to encourage the development of the electronic communications sector in the free competitive market, and to support the transition to an information society;
• determining policies on the construction and development of electronic communications infrastructure, networks and services in accordance with technical, economic and social needs, in harmony with the national security objectives and the public interest, and towards ensuring their operation in a complementary manner;
• contributing to the creation of policies to develop the electronic communications equipment industry;
• taking measures to encourage the domestic production of electronic communications equipment;
• representing the state or giving authorisation to represent the state in international associations and organisations regarding electronic communications;
• conducting and having third parties conduct the necessary research for determining and implementing electronic communications policies;
• taking necessary measures and performing coordination to ensure the continuity of electronic communications in the case of natural disasters and extraordinary situations;
• planning electronic communications services in the case of extraordinary situations and at war; and
• encouraging the domestic design and production of electronic communications systems, and promoting research, development and training in relation to the sector.

The ICTA has the following powers and duties:

• regulating to create and protect competition, and to eliminate practices that are obstructive, disruptive or limitative for competition;
• imposing obligations on operators with significant market power in the relevant markets and on other operators where required, taking the necessary measures;
• inspecting breaches and imposing sanctions;
• making arrangements pertaining to the rights of subscribers, users, consumers and end users, as well as to the processing of personal data and protection of their privacy;
• conducting dispute resolution procedures between operators where necessary and taking the necessary measures;
• following developments in the electronic communications sector;
• planning and allocating frequencies, satellite positions and numbering necessary for the provision of electronic communications services, and the installation and operation of electronic communications networks and infrastructure;
• performing necessary regulations and inspections;
• supervising radio systems and determining the scope of commercial secrets;
• obtaining information and documentation that are deemed necessary;
• determining and transferring funds, which do not exceed 20% of income, to the Ministry of Transport and Infrastructure for purposes relating to research, development and training in the electronic communications sector;
• determining general criteria and implementation procedures and principles regarding tariffs to be imposed;
• approving reference access offers;
• determining the provisions and conditions for authorisations and supervising their implementation and conformity;
• conducting frequency planning, assignment and registration procedures;
• ensuring the publication and implementation of the harmonised national standards for systems and equipment, and creating technical regulations;
• coordinating the authorisation of institutions that will conduct installation, measurement, maintenance and repair activities;
• conducting market analyses to determine the relevant market and operators with significant market power in the relevant markets;
• determining procedures and principles regarding fees;
• inspecting operators and the quality and standards of their services, and taking necessary measures;
• drafting regulations prescribed by the legislation; and
• enacting bylaws, communiqués and other secondary regulations.

(b) Internet

The ICTA is also the primary regulator for the internet sector. The ICTA can impose sanctions on internet actors for non-compliance with regulations. Courts, public prosecutors and the ICTA may issue blocking orders.

The Access Providers Association, established in 2014 under the Internet Law, is responsible for implementing access-blocking decisions and processing user complaints regarding personal rights and privacy.

As for violations of the Competition Law, the Competition Authority has the authority to supervise and impose fines on internet actors.

(c) Media

The Radio and Television Supreme Council (RTSC) is an autonomous and impartial public legal entity that rules and supervises broadcast media advertising.

To achieve its primary objectives, the RTSC:

• monitors and supervises the broadcasts of media service providers;
• designs and implements television channel and radio frequency planning within the framework of frequency bands for terrestrial radio and television broadcasts;
• determines the required administrative, financial and technical standards for a broadcast licence, grants broadcast licences, supervises the holders of such licences and revokes broadcast licences when needed; and
• performs other functions and exercises its powers as determined by the Broadcasting Law.

Another regulatory entity, the Advertising Board, is established under the Ministry of Trade and is responsible for controlling advertising in all media, including television, radio, and the Internet. The Advertising Self-Regulatory Board is the primary advertising self-regulatory body.

(d) Social media

Social media providers fall under the supervision of the ICTA.

Social media providers with daily traffic of more than 1 million must appoint at least one Turkish representative in Turkey and notify the ICTA of its representative. Otherwise, the ICTA imposes layered sanctions on social network providers. Such layered sanctions include the following respectively:

Fines: First, the ICTA will warn the social network provider to appoint a representative. If the social network provider does not appoint a representative within 30 days of the date of notification, the ICTA will impose an administrative fine of TRY 10 million on the social network provider. If the social network provider fails to comply with such obligation within 30 days of the date of the administrative fine, it will be subject to an additional administrative fine of TRY 30 million.

Ad bans: If the social network provider again fails to appoint a representative within 30 days of receiving the second administrative penalty:

• natural and legal taxpayers residing in Turkey are prohibited from posting new ads on the relevant social network; and
• the social network provider cannot establish new contracts and cannot transfer money related to it.

Decrease in internet traffic bandwidth: If the social network provider once again fails to appoint a representative within three months of the ad ban decision, the ICTA may apply to court for a decision to reduce its internet traffic bandwidth by 50%.

1.3. What is the general approach of those bodies in regulating the relevant sectors?

The ICTA acts meticulously and proactively monitors the compliance of sector actors with the telecommunications, internet and social media laws.

Telecommunications: In the telecommunications sector, the ICTA requires authorisation for certain services. Furthermore, it will revoke this authorisation if an operator has provided no services for three years after obtaining the authorisation.

Media: In the media sector, media service providers and internet broadcast platform operators fall under the supervision of the RTSC. Under the Broadcasting Law, media service providers have the right to freely determine content and transmission. In other words, they are not required to intervene and supervise in advance the content that they broadcast.

As the systems established by the RTSC for monitoring television and radio broadcasts do not reflect the latest technological developments, the RTSC decided to launch the Digital Recording and Archiving System project to monitor, record and archive radio and television broadcasts in the digital environment. The system is operational 24 hours a day, and broadcasts are recorded and archived uninterruptedly by technical staff who work in shifts.

Radio and television broadcasts are controlled in three ways:

• direct control by RTSC experts;
• audience control through complaints submitted to the ALO 178 RTSC Communication Centre, the RTSC website and by email to the RTSC; and
• self-control of broadcasting organisations in the context of audience representation and publication of ethical principles.

The RTSC cannot interfere with programmes before they are broadcast, but can monitor them after broadcast. Decisions of the RTSC may be brought before the administrative courts.

Social media: The ICTA has fined Facebook, Instagram, Twitter, Periscope, YouTube, TikTok, Pinterest, LinkedIn and Dailymotion TRY 10 million each for failure to notify it of their appointed representatives after the expiry of the legal period to do so. The ICTA then gave these companies an additional 30 days to remedy the situation. However, as they once again failed to do so, the ICTA fined each of them TRY 30 million. After this second fine was imposed, the social network providers agreed to appoint representatives in Turkey.

On 20 October 2022, the Competition Board imposed an administrative fine of over TRY 346 million on Meta Platforms, Inc for violating the Competition Law. According to the Competition Board, Meta had abused its dominant position by:

• combining data collected from its core services – Facebook, Instagram and WhatsApp;
• preventing entry into the market; and
• complicating the operations of competitors in the online display advertising markets with personal social networking services.

1.4. What other industry codes of conduct or best practices are applicable in the relevant sectors?

(a) Telecommunications

The Electronic Communications Industry Service Quality Regulation specifies how operators should operate and provide services in compliance with local, national and international standards for service quality and/or infrastructure companies.

According to the regulation, businesses are expected to:

• ensure that electronic communication services adhere to international standards and requirements while taking into account dynamic market situations;
• support procedures that increase customer satisfaction and resolve complaints;
• treat users in similar locations equally and provide the same service to them at the same degree of quality; and
• take into account particular circumstances such as user accessibility to emergency numbers and the needs of disabled users, while developing service quality requirements.

(b) Internet

Content providers, hosting providers, access providers and mass use providers are subject to the Internet Law. Content, hosting and access providers must keep their introductory information up to date and accessible to users on their own internet media.

In addition, online news sites have certain obligations under the Anti-disinformation Law. They must display the business address, trade name, email address, contact phone number and electronic notification address, and the name and address of the hosting provider under the "Contact" heading of the relevant website, in a way that users can directly access from the home page.

(c) Media

Media service providers must provide their services in line with an understanding of public responsibility.

Media services must:

• not violate the existence and independence of the state, the indivisible integrity of the state with its country and nation, or the revolutions and principles of Atatürk;
• not inflame society to hatred and hostility by discriminating based on race, language, sex, class, region, religion and sect, or foment hatred within society;
• not be contrary to the rule of law and the principles of justice and impartiality;
• not be contrary to human dignity and the principle of the privacy of personal life;
• not include humiliating, derogatory or defamatory expressions against persons and entities/organisations beyond criticism;
• not praise or encourage terrorism, depict terrorist organisations as powerful or righteous, or portray terrorist organisations' intimidating and deterrent qualities. They cannot present acts, perpetrators and victims of terrorism in the form of serving the interests of terrorism;
• not contain and encourage broadcasts that discriminate based on race, colour, language, religion, nationality, sex, disability, political or philosophical views, sect or similar reasons, or contain and encourage broadcasts that humiliate persons;
• not be contrary to the national and moral values of Turkish society, general morality and the principle of family protection;
• not praise the commission of crime, criminals or criminal organisations, or teach criminal techniques;
• not contain and encourage the abuse of children or powerless and disabled people, or incite violence against them;
• not encourage the use of addictive substances such as alcohol, tobacco and narcotics, or gambling;
• predicate on the principles of impartiality, truthfulness and accuracy, and not impede the free formation of opinions in the society. News that can be investigated pursuant to the professional principles of the press must not:
• be broadcast without investigation or verification; or
• provide exaggerated sounds and images, or any effects or music other than natural sounds. Archive or re-enactment images must be indicated as such; and the source of news obtained from agencies or other media sources must be stated;
• not present or declare anyone as guilty unless conclusively proven guilty by a judicial decision;
• not be capable of affecting the trial process and impartiality, other than being newsworthy during the judgment process in cases that have been passed to the judiciary;
• not contain any elements that would cause unfair competition and serve unfair interests;not be biased towards or favour political parties or democratic groups;
• not encourage acts that would jeopardise the general health and/or protection of the environment and animals;
• ensure that the Turkish language is used correctly, well and comprehensibly, without undermining its characteristics and rules, and not make crude, inferior or slang use of the Turkish language;
• not be obscene;
• respect the rights of people and institutions/organisations to reply and rectification;
• not contain contests or lotteries via information communication media, award prizes to listeners or viewers, or act as an intermediary for the award of prizes;
• ensure that surveys and public opinion polls that have been arranged or commissioned by the media service provider take place before a notary public from the preparatory stages until announcement of the results;
• not exploit people by way of fortune telling or superstitions;
• not contain programmes that are contrary to social gender equality, encourage pressure/oppression on women or exploit women; and
• not encourage or incite violence.

(d) Social media

Social network providers must immediately inform the ICTA of any changes to the appointed representative within 24 hours at the latest.

In addition, social network providers must, within 48 hours at the latest, respond affirmatively or negatively to requests for the removal of content that violates the rights or privacy of an individual. If the social network provider refuses to fulfil the request, it must have reasonable grounds to do so.

Social network providers must:

• ensure that the applications to be made by individuals can be easily received; and
• allow individuals to submit applications in Turkish. Applications made in Turkish must be answered in Turkish.

Social network providers must also send reports to the ICTA about:

• statistical and categorical information on the implementation of content removal and/or access blocking decisions; and
• requests notified to them over a six-month period.

These reports must be cleaned of personal data and published on the social network provider's websites. Local or foreign-based social network providers must take the necessary measures to host user data in Turkey. Social network providers must:

• take the necessary measures to host locally the data of users in Turkey regarding basic user information and the issues to be notified by the ICTA;
• establish effective mechanisms to cooperate with the ICTA to remove hashtags and featured content on receiving a warning; and
• meet other obligations, including the obligation to take the necessary measures to provide child-specific segregated services.

Social network providers must provide the legal authorities with all necessary information to track down perpetrators who create and distribute internet content that is the subject of certain crimes set out in the Criminal Code. In case of breach of this obligation, the bandwidth may be reduced by 90%.

Social media influencers are subject to certain rules on advertising posts (including photos, videos and messages) that they share on social media. According to the Guidelines for Influencers, social media influencers must clearly state the content of the promotion (eg, advertising, sponsorship, collaboration, giveaway) when promoting a product or service.

2. Ownership

2.1. Who is eligible to provide services in the following sectors in your jurisdiction? Are there any restrictions on foreign ownership? Do any domicile requirements apply? What other requirements or restrictions apply in this regard: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?

(a) Telecommunications

According to the Regulation on Authorisation for the Electronic Communications Sector, an organisation must be duly established as a limited liability or joint stock company to obtain authorisation from the Information and Communication Technologies Authority (ICTA) in the telecommunications sector. There are no restrictions on foreign ownership, so a foreign entity or individual can be the sole shareholder of the company.

(b) Internet

There are no restrictions on foreign ownership in Turkey. However, there is a domicile requirement to obtain authorisation from the ICTA: organisations must be incorporated as a joint stock company or limited liability company in accordance with Turkish law. Please see question 3.1(b) for detailed information on licence and authorisation requirements.

(c) Media

Legal entities that have editorial responsibility for selecting the content of radio, television and on-demand broadcasting services and deciding on the arrangement and broadcasting of this content are called ‘media service providers'.

Under Law 6112, media service providers must be established as joint stock companies in order to obtain a broadcasting licence. The exclusive purpose of the joint stock company must be the provision of radio, television and on-demand broadcast services. In addition, the shares of such companies must be registered.

However, the following entities are not allowed to apply for a broadcasting licence:

• political parties;
• unions;
• professional associations;
• cooperatives;
• associations;
• societies;
• foundations;
• local administrations and companies established by them or of which they are direct or indirect shareholders;
• stockbroker companies; and
• natural or legal persons that are direct or indirect shareholders of these companies.

A single entity or natural person may not directly or indirectly be a shareholder in more than four media companies with terrestrial broadcasting licences. The total market share of the multiple entities in which a single entity or person holds ownership may not exceed 30% of the revenues generated in such a market.

Certain restrictions regarding foreign ownership are stipulated under Law 6112. Foreign ownership in media service providers may not exceed 50% of the paid-in capital of such media service providers. A foreign natural person or entity may directly be a shareholder of a maximum of two media service providers.

If foreign natural persons or entities hold shares in companies that are shareholders of media service providers and become indirect partners of the broadcasting company:

• the chair, the deputy chair and the majority of the board of executives and the general director of the broadcasting enterprises must be citizens of Turkey; and
• the majority of the votes in the general assemblies of broadcasting companies should belong to natural or legal persons holding Turkish citizenship.

Lastly, foreign shareholders must not own preference shares, as domestic shareholders do not either.

(d) Social media

Foreign-based social network providers with daily traffic of more than 1 million in Turkey are required to appoint a natural person or legal entity representative in Turkey. A natural person representative must be a Turkish citizen. Moreover, where the foreign-based social network provider has daily traffic of more than 10 million in Turkey, its legal entity representative must be a branch established directly by the social network provider as a capital company in Turkey.

First published by Mondaq, 17 June 2023.

Tagged with: Ünsal Law Firm, Burçak Ünsal, Mutlu Şeyma Kömür, Kaan Özdemir, Technology & Telecoms