TMT Comparative Guide - Part 4

6. Internet

6.1. What provisions apply to high-speed broadband in your jurisdiction? Are there any government incentives to promote broadband penetration?

The provisions applicable to high-speed broadband can be found in:

• the Electronic Communications Law; and
• the Regulation on Passing All Kinds of Cables and Similar Equipment Used in Fixed and Mobile Communication Infrastructure or Networks through Immovables.

In the Broadband and Internet Report published in 2013, the broadband targets set for 2023 were as follows:

• ensuring that ever domicile has broadband access (i.e., providing broadband services to every household and workplace at a speed of at least 100 megabits per second through new-generation technologies);
• expanding the use of broadband internet (i.e., ensuring that 80% of the population aged 16 to 74 are using broadband);
• positioning Turkey as a regional hub and transit point with strong internet exchange points; and
• implementing measures to develop mobile broadband infrastructure.

In December 2017, the National Broadband Strategy and Action Plan (2017–2020) was published in cooperation with:

• the Ministry of Development;
• the Information and the Communication Technologies Authority (ICTA);
• the Competition Authority;
• non-governmental organisations; and
• relevant sector representatives.

The basic principles in this plan included:

• establishing broadband infrastructure across the country;
• ensuring fibre access throughout the country;
• improving connection capacity and speed; and
• creating demand by increasing the prevalence of broadband internet services and applications.

6.2. What net neutrality regulations apply in your jurisdiction? Are any exemptions and/or exceptions available?

There are no specific regulations in Turkey on the principle of net neutrality. However, there are certain rules in the Electronic Communication Law aimed at ensuring the provision of electronic communications services in a non-discriminatory and transparent manner. The interests of consumer rights and fair competition among operators are maintained and promoted. Accordingly, competent authorities must establish ‘neutrality' in terms of the provision of electronic communication services and regulations made in this regard. It is not clear whether this provision refers to ‘net neutrality'; however, we believe that establishing neutrality in electronic communication services may serve the net neutrality concept.

6.3. Are internet service providers (ISPs) obliged to block or restrict access to specific websites or types of content in your jurisdiction?

The courts may decide to remove content and/or to block access to online publications where there is adequate reason to suspect that they relate to the following crimes:

• crimes under the Criminal Code (5237):
• • encouragement of suicide (Article 84);
  • sexual abuse of children (Article 103, first paragraph);
  • facilitation of the use of drugs or stimulants (Article 190);
  • hazardous substances for health (Article 194);
  • obscenity (Article 226);
  • prostitution (Article 227); or
  • provision of space and facilities for gambling (Article 228);
• crimes under the Law Concerning Crimes Committed Against Atatürk (5816);
• crimes under the Law on Regulation of Betting and Games of Chance in Football and Other Sports Competitions (7258); and
• crimes included in the first and second paragraphs of Article 27 of the State Intelligence Services and National Intelligence Organization Law (2937).

The judge, during the investigation phase, may decide to remove the content and/or block access; and the court may decide to do so during the prosecution phase. During the investigation phase, the public prosecutor may also decide to remove the content and/or block access in urgent cases. The decision to remove the content and/or block access must be fulfilled immediately and at the latest within four hours of notification of the decision.

The judge or in, urgent cases, the ICTA is authorised to decide on whether to block access and/or remove content in internet broadcasts in cases relating to one or more of the following:

• the protection of the right to life and individuals' right to life and property;
• the protection of national security and public order;
• the prevention of crime; or
• the protection of general health.

The ICTA will immediately notify access providers and relevant content and hosting providers of the decision. They must implement the decision to remove the content and/or block access immediately and at the latest within four hours of notification.

In addition, a person who claims that personality rights have been violated by content published online may:

• request that the content provider – or, where the content provider cannot be reached, the hosting provider – remove the content from the broadcast through a warning; or
• apply to the judge of the court of peace for a direct request to remove and/or block access to the content.

A person who claims that his or her privacy has been violated by online content may apply to the ICTA and request that access to the content be blocked.

6.4. Is the use of virtual private networks permitted in your jurisdiction?

There are no explicit provisions under Turkish law that prohibit the use of virtual private networks (VPNs). However, according to Article 6/1(ç) of the Internet Law, access providers must take measures to prevent alternative access routes regarding publications that are subject to an access-blocking decision. Since VPNs are one of the alternative means of access, access providers must be careful about taking the necessary measures to ensure that illegal content cannot be accessed via VPN.

Thus far, more than 20 VPN services – including Tor Project, VPN Master, Zenmate VPN and TunnelBear – have been blocked in Turkey. In addition, ISPs blocked access to ProtonMail, which provides encrypted email services. On 24 March 2018, the president of the ICTA made a public announcement stating that the ICTA will continue to take necessary measures in relation to VPN services to prevent them from being used to access illegal content.

6.5. In what circumstances will ISPs be held liable for offending content carried on their networks? What defences are available?

Access providers are not required to verify whether the information to which they provide access is illegal. They will not be held liable for any offending content carried on their networks. However, they must block illegal content after becoming aware or being notified that it has published or posted by users.

Access-blocking decisions generally require only that access be blocked to the content (eg, in the form of a URL) relating to the illegal broadcast, section or part. It is not necessary to block access to the full publication, except where specifically required. However, if blocking access to the content merely by specifying the URL would not avoid the unlawfulness, the judge may decide to block access to all broadcasts on the website.

6.6. How are digital platforms regulated in your jurisdiction?

In Turkey, digital platforms are not subject to specific separate regulation. Depending on their nature, digital platforms may be subject to the laws governing:

• the Internet;
• electronic communications;
• radio and television broadcasting; and
• social media.

7. Media

7.1. What rules and requirements apply to public broadcasters in your jurisdiction?

The Turkish Radio and Television Corporation (TRT) is the only public broadcaster in Turkey.

In accordance with the Turkish Constitution and the Turkish Radio and Television Law (2954), the autonomy and impartiality of the TRT's broadcasts are essential.

The TRT's main responsibilities, as stipulated in Law 2954, include:

• broadcasting radio and television programmes;
• establishing programme transmission systems and studios;
• establishing, developing and improving broadcasting stations;
• engaging in revenue-generating activities; and
• establishing units for programme production and broadcast.

7.2. What rules and requirements apply to commercial broadcasters in. your jurisdiction?

As explained in questions 2 and 3, the Radio and Television Supreme Council (RTSC) is authorised to grant licences to media service providers that broadcast through terrestrial, digital, satellite, cable and on-demand media in Turkey. In order to obtain a broadcasting licence, the necessary documents must be submitted to the RTSC.

Commercial media service providers must obtain a separate licence from the RTSC for each broadcasting technique and transmission medium to broadcast through cable, satellite and similar media.

7.3. Do any ‘must-carry' obligations apply in your jurisdiction? If so, what are they and how are they funded?

There are no regulations on must-carry obligations under Turkish legislation.

7.4. Do any local content requirements apply in your jurisdiction? Do any restrictions apply to foreign content? What exemptions and/or exceptions are available?

According to Law 6112, broadcasting service providers must adhere to the broadcasting service principles stated in the law regarding the content of broadcasting services supplied. This requirement applies to the content of both foreign-made and locally produced programmes.

At least 20% of cartoons and at least 40% of other children's programmes must be productions in the Turkish language.

The RTSC must give approval for media service providers to make broadcasts in languages and dialects other than Turkish. Broadcasting in other languages and dialects is not allowed without the permission of the RTSC.

Media service providers that wish to broadcast in foreign languages and dialects must apply to the RTSC with the decision of their board of directors that specifies:

• the proposed languages and dialects;
• the programme types;
• the daily broadcasting schedules of those programmes; and
• their monthly broadcasting plans.

There is no need to obtain permission for individual musical works, cinematic works, commercial communications or on-demand media services in languages and dialects other than Turkish.

Television broadcasters that hold a national terrestrial broadcasting licence must:

• allocate at least 50% of their broadcast time – excluding the time allocated to news, sport events, contests, advertising, teleshopping and related data broadcasts – to European works; and
• allocate 10% of their broadcast time or programme budget – excluding the time allocated to news, sporting events, contests, advertising, teleshopping and related data broadcasts – to European works of independent producers.

The procedures and principles aimed at encouraging on-demand broadcasting service providers to support the production of and access to European works are determined by the RTSC.

7.5. What other content requirements and restrictions apply in your jurisdiction? Do these vary depending on the distribution channel (eg, traditional broadcast media versus new media)?

The Broadcasting Law applies to radio and television broadcasting services and on-demand media services within Turkey, transmitted by all techniques, methods or means, and by electromagnetic waves or other means under any denotation. All content, including ads and editorials, is subject to the Regulation on Broadcasting Principles.

Unlike traditional broadcast media such as radio and television, new media content is regulated by Law 5651. However, according to Law 6112:

• media service providers that broadcast online and platform operators that transmit these broadcasts online must obtain a licence from the RTSC; and
• online broadcasting activities are under the supervision and control of the RTSC according to the same principles that apply to television and radio broadcasts.

7.6. How is advertising regulated in your jurisdiction? Does this vary depending on the distribution channel?

Advertising activity is mainly regulated by Law 6112.

Advertising broadcasts cannot contain any content which could:

• mislead the public;
• lead to unfair competition;
• disparage other products or qualifications;
• imply the wastefulness of any product; or
• damage the country's economic situation.

Also, political propaganda cannot be broadcast through advertising.

In television and radio broadcast services, ads and teleshopping should be presented in such a way that they are clearly discerned as such and are easily distinguished from other elements of the programme service through an audio and/or visual announcement. The rate of all advertising other than teleshopping broadcasts cannot exceed 20% of the broadcasting time within an hour.

Commercial communications for the following are not permitted:

• alcohol and tobacco products; and
• pharmaceuticals and medical treatments that are subject to prescription.

Ads for pharmaceuticals and medical treatments that are not subject to prescription must be prepared under the principle of integrity, and presented in such a manner that they comprise elements that reflect the truth and can be verified. Teleshopping is not permitted for pharmaceuticals and medical treatments.

Commercial ads in Turkey are supervised by the Advertising Board. The board is authorised to:

• determine the principles to be followed in commercial advertising;
• protect consumers against unfair commercial practices;
• examine and, if necessary, audit such practices;
• stop ads that are contrary to Article 61 of Law 6502; and
• impose a fine or a precautionary suspension of up to three months.

Advertising ethics do not vary depending on whether the ad is published in traditional or new media.