Plenary Assembly 27/19

Press Release concerning the Decision Annulling the Provision Providing for Suspension of the Broadcast of Enterprises Failing to Pay the Channel and Frequency Usage Fee

The Constitutional Court, at its session dated 16 October 2019, found unconstitutional and annulled the provision which stipulated that the broadcast of enterprises failing to pay the channel and frequency usage fee in accordance with Article 42 of Law no. 6112 shall be ceased within one month (file no. E.2019/70).

Contested Provision

The contested provision stipulates that the broadcast of the enterprises failing to pay the channel and frequency usage fee shall be ceased by the Radio and Television Supreme Council (“the RTÜK”) within one month.

Ground for the Request for Annulment

It was maintained in brief; that the suspension of broadcasting activities of private radios and televisions by the RTÜK due to the receivables that were collectible was unnecessary; that there was no reasonable balance between this sanction and the aim sought to be achieved; that the relevant provision was in breach of the principle of proportionality as well as incompatible with the principle of rule of law; and that therefore it was unconstitutional.

The Court’s Assessment

It is clear that the impugned measure in the form of suspension of broadcast, which was imposed by virtue of the contested provision, has restricted the freedom of expression and the press enjoyed by the relevant radio and television channels. Article 13 of the Constitution should be taken into consideration when restricting the freedom of expression and the press.

Frequency bands are in the nature of the State Treasury’s property of which the country as a whole is its beneficiary. Therefore, the licence to use the frequency bands shall be granted by the Supreme Board in accordance with the Electronic Communication Law no. 5809.

Payment of the channel and frequency fee is a requirement of the licensing system. Application of measures by the administration to ensure the collection of such payments, as specified in the contested provision, refers to the restriction made within the scope of the licensing system set forth in Article 26 of the Constitution; therefore, the restriction introduced by the relevant provision pursues a constitutionally legitimate aim.

As stated in the established case-law of the Constitutional Court, freedom of expression and the press is of vital importance for the functioning of democracy. In this context, operating a licensing system as regards the television frequency allocation and thus establishing a sound order in this respect will serve for ensuring the channels and radios to use frequencies that are limited, thereby protecting the freedom of expression and the press. Therefore, the application of certain measures to ensure the collection of channel and frequency usage fee within the scope of the licensing system comply with the requirements of the democratic order of the society.

With the authorization to cease broadcast that is provided by the contested provision, it is aimed to ensure that the channel and frequency usage fees are paid on time and thus the licensing system is fully implemented. In this case, it should be examined whether the said restriction has been strictly necessary to achieve the aim pursued as well as whether there has been a reasonable balance between them.

It is set forth in the contested provision that private radio or television broadcast may be ceased directly without applying a gradual method as a measure for receivables that will be subject to default interests in case of a delay or failure in their payment and may also be collected through enforcement.

The contested provision does not prescribe a limit for the unpaid monetary amounts, thus it allows that the relevant measure is applied even for small amounts. As a result of the measure, the suspension of the broadcast, which is temporary, may become permanent after the broadcasting activities of the relevant channel have been ceased and its revenues have been cut.

Restriction on freedom of the press must be subject to stricter criteria in that it also ensures the individuals’ freedom of information. In this regard, it has been concluded that the envisaged measure has not been mandatory in terms of the aim sought to be achieved by the contested provision and that the reasonable balance between the public interest pursued by the restriction and the freedom of expression and the press could not be struck.

 Consequently, the contested provision has been found in breach of Articles 13, 16 and 28 of the Constitution and therefore annulled.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.