RTÜK's Regulatory Authority Over the Internet Environment

A) General Overview of the Scope of Regulatory Authority (Legislation)

Not all broadcasts in the internet environment automatically fall within the direct regulatory domain of the Radio and Television Supreme Council (RTÜK). The scope of regulatory authority possessed by RTÜK—a regulatory and supervisory public authority vested with the power to issue binding administrative decisions—over data residing on the internet network is defined under Law No. 6112 on the Establishment of Radio and Television Enterprises and Their Media Services, alongside the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment, enacted pursuant thereto, and derivative secondary regulations.

Article 29/A of Law No. 6112, governing internet broadcasts, refers to media service providers and platform operators. Furthermore, Article 2/1 of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment specifies that the Regulation shall encompass the provision of radio, television, and on-demand broadcast services "via the internet environment," private media service provider entities offering such services "via the internet environment," and platform operators facilitating the transmission of these broadcast services. This constitutes the precise operational domain over which RTÜK exercises statutory authority pursuant to normative enactments. Consequently, to fully comprehend this domain, the normative concepts of radio broadcast, television broadcast, on-demand broadcast, media service provider, platform operator, and internet environment must first be defined.

B) Boundaries Delineated Pursuant to Normative Definitions of Concepts

1. Concepts of Radio-Television Broadcast and On-Demand Broadcast

Article 4 of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment defines internet radio broadcast as "audio and data broadcasting executed via the internet environment based on a publication schedule, excluding individual communication services," internet television broadcast as "visual-audio broadcasting services, encrypted or unencrypted, offered via the internet environment by a media service provider to enable viewing based on a publication schedule, excluding individual communication services," and on-demand broadcast service via the internet environment as "broadcast services enabling the viewing or listening of programs from a program catalog curated by a media service provider at a time selected by the user upon individual request, directly or through conditional access via the internet environment, excluding individual communication services."

2. The Concept of Media Service Provider

Article 3/1-ı of Law No. 6112 defines a media service provider as "a legal entity holding editorial responsibility for the selection of radio, television, and on-demand broadcast service content and determining the manner in which this service is organized and broadcast." Pursuant to this provision, corporate entities operating a radio and/or television channel, or operating on-demand broadcasting platforms hosting catalogs of feature films, series, documentaries, or music videos, qualify as media service providers. When such broadcasts are conducted via the internet environment, media service provision is evaluated within the scope of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment.

Media service providers subject to evaluation under the internet law framework governing RTÜK's jurisdiction are not limited strictly to domestic undertakings. Pursuant to paragraph three of Article 29/A of Law No. 6112, where content or hosting providers are located abroad, broadcast organizations operating under the jurisdiction of another state that are determined by RTÜK to be broadcasting in violation of international treaties regarding RTÜK's field of duty to which the Republic of Türkiye is a party and the provisions of Law No. 6112, or undertakings broadcasting via the internet environment in Turkish targeting Türkiye, or incorporating commercial communication broadcasts targeting Türkiye despite broadcasting in a foreign language, are statutorily required to obtain a broadcasting license from RTÜK.

3. The Concept of Platform Operator

Article 3/1-p of Law No. 6112 defines a platform operator as "an entity that transmits numerous broadcast services by converting them into one or more signals over satellite, cable, and analogous media in encrypted and/or unencrypted form for direct reception by the audience." Article 4/1-m of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment defines an internet broadcast platform operator as "an entity that makes available to users numerous radio, television and/or on-demand broadcast services via the internet environment through their own URL addresses and/or mobile applications, accessible via integrated television receivers, computers, smartphones, tablets, or analogous devices through direct and/or conditional access." The most illustrative examples of internet broadcast platform operators are the Digitürk and D-Smart platforms alongside their operating corporate entities.

Regarding the distinction between platform operators and media service providers, a hypothetical Firm X operating a platform hosting TV, radio, and on-demand film and/or music broadcasts serves as an example. Firm X shall be classified as both a platform operator and a media service provider regarding TV broadcasts produced under its own editorial responsibility or recorded films, music videos, and derivative content transmitted directly via the internet environment as on-demand broadcasts on its platform. However, when merely transmitting the broadcasts of third-party media service providers, it shall be classified strictly as a platform operator with respect to those specific broadcasts.

4. The Concept of Internet Environment Under the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment

Within Turkish internet law legislation, the term "internet network" is generally not defined in a holistic manner; consequently, statutory provisions construed through these definitions apply solely to restricted segments of the internet. The definition of "internet environment" under Article 4 of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment follows this statutory pattern. Said definition is identical to the definition codified under Article 2/1 of Law No. 5651 as "the environment created on the public internet, excluding personal or corporate computer systems and interpersonal communications."[1] Technically speaking, this space encompasses the surface web and the deep web, excluding encrypted data inaccessible to the general internet user.

Consequently, under a literal construction of the Regulation's provisions, the internet environment subject to RTÜK's oversight consists of radio, television, and on-demand broadcast services delivered across publicly accessible internet environments reachable by an indefinite number of persons. This domain manifests as radio, TV, or on-demand broadcast services provided openly, free of charge, or unencrypted by internet media service providers and platform operators via YouTube or dedicated private platforms accessible to the general public.

Although the definition of the internet environment in the Regulation mirrors the definition under Law No. 5651—generating a literal inference that only radio, TV, and on-demand services provided within the defined public space fall within the Regulation's scope—such a literal construction fails to align with the teleological purpose of the Regulation. Under a teleological construction of the Regulation, the internet environment subject to RTÜK oversight encompasses not only broadcast services conducted in publicly accessible internet spaces reachable by an indefinite number of persons, but also encrypted broadcasts accessible for a fee, upon invitation, or through restricted mechanisms. These encrypted internet environments consist of data hosted on servers accessible solely to specific authorized individuals, such as fee-paying subscribers of Netflix servers.

C) Boundaries Delineated Pursuant to the Nature of Broadcasts

Not every broadcast that can be subsumed under the normative definitions in the legislation falls directly within the statutory ambit of Law No. 6112, the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment, or RTÜK's derivative supervisory authority. For instance, a closed-circuit on-demand broadcast service operating strictly within a small-scale "art lovers" forum accessible exclusively to registered members falls outside the scope of this legislation. The primary rationale is that under a strict literal interpretation, such encrypted/closed internet environments remain excluded. Secondly, even if such encrypted environments were subsumed under a teleological interpretation, the construction conforming to the holistic spirit of this statutory framework does not extend to every closed broadcast.

The construction aligning with the holistic spirit of Law No. 6112 and the Regulation dictates that, regarding encrypted/closed broadcasts, the legislation applies strictly to broadcasts accessed via databases over the internet network where membership plus administrator approval is granted (whether for consideration or otherwise), where the administrator accepts any user willing to pay or register without regard to personal characteristics (barring cybersecurity concerns), and where a consumer relationship is generated if the broadcast is provided for pecuniary consideration. Therefore, on-demand series broadcasts available free of charge on a television channel's website, alongside platform broadcasts offered exclusively to fee-paying subscribers by entities such as Digitürk, Netflix, and derivative platforms, must be deemed to fall within the scope of the Regulation.

A further statutory limitation delineating RTÜK's regulatory domain is codified under Article 2/2 of the Regulation on the Provision of Radio, Television and On-Demand Broadcast Services via the Internet Environment, which explicitly excludes platforms not dedicated to transmitting radio, television, and on-demand broadcast services via the internet environment, individual communication services, and entities acting purely as hosting providers for such services. Article 4/1-a of the Regulation defines individual communication as "a mechanism enabling interpersonal visual-audio interaction and communication." This concept extends to uploading individual user content onto platforms such as YouTube. Consequently, an independent content creator filming a mini-series and publishing it on YouTube falls outside the scope of the Regulation; such content is governed directly under Law No. 5651 and its secondary legislation. Conversely, where a traditional television broadcaster concurrently streams its television broadcast via YouTube or derivative environments, such actions by a media service provider cannot be classified as individual communication, remaining fully within the regulatory scope of the Regulation.

Platforms not dedicated to transmitting radio, television, and on-demand broadcast services via the internet environment consist of internet platforms whose primary operational purpose is distinct from such broadcasting activities. The most illustrative examples encompass social media platforms where users share content with one another, but which host legitimate/copyrighted on-demand broadcasts or TV/radio streams, such as YouTube, VK, and derivative social platforms. Conversely, platforms specifically dedicated to transmitting radio and television broadcasts via the internet environment include entities such as Digitürk (Beinconnect), Netflix, Spotify, Fizy, YouTube Music, YouTube TV, and derivative platforms providing access to online-only radio or television channels.