|Kayra Üçer||Ismet Bozoglu|
Under Turkish law, several pieces of legislation either directly pertain to online betting on sporting events such as the Law on the Transfer of Rights to Organise Sports Betting to Private Legal Entities (Law No. 5738, enacted in 2008) and the Regulation on Online Gaming (2006) or contain provisions that may relate to online betting, such as the Law on the Regulation of Internet Broadcasting and Prevention of Crimes Committed by Means of Internet Broadcasting (Law No. 5651, enacted in 2007), the Turkish Penal Code (2004) and the Misdemeanours Law (2005).
Initially, a clear distinction must be made between online betting and online gambling. The Misdemeanours Law prohibits any type of gambling, and any person who gambles is sanctioned with an administrative penalty and seizure of their gambling proceeds by the state.
The TPC bans supplying a place or opportunity for gambling or otherwise facilitating gambling, and persons violating the relevant provisions of the TPC can be subject to penalties that include imprisonment. The TPC and Misdemeanours Law do not distinguish between actual and virtual (online) gambling. They forbid all types of gambling within the borders of Turkey, and under Law No. 5651, if there is even suspicion that a website is supplying a place or an opportunity to gamble, access to the relevant website is blocked.
Unlike online gambling, online sports betting is allowed under strict rules and regulations. The 1988 Decree on Establishment of the Turkish National Lottery (Milli Piyango) gives the Turkish National Lottery Administration (NLA) monopoly authority to organise luck-based games and guarantee monetary prizes to winning participants.
The NLA is also entitled to transfer licences to organise online luck-based games for definite terms, and to control and supervise the use of such licences in compliance with applicable law. Accordingly, Law No. 5738 was designed to establish the principles for transferring licences to legal entities to organise bets on soccer and other sports. Without the duly obtained licence, neither local nor foreign legal entities can organise online betting activities within Turkey via their own websites.
During the period when Law No. 5738 was being debated, the NLA reportedly inspected a number of online betting and gambling websites broadcasting from foreign countries and available to individuals in Turkey. Based on the inspection reports, the NLA initiated a number of lawsuits against website operators, claiming that the relevant sites were violating the NLA's monopoly in Turkey, requesting cessation of the violation of the monopoly, and demanding that access to the relevant websites be blocked.
In lawsuits finalised recently, several issues were discussed before the Court of Appeals, such as the language of broadcasting, IP number control, prevention of access from specific countries, and operators lawfully licensed in a foreign country. Among its various decisions, the Court of Appeals stated that among the other languages it offered the relevant foreign website was also broadcasting in the Turkish language, leading to the opinion that Turkish customers were being targeted and that the operator was trying to offer betting services to individuals in Turkey.
The Court in general holds the opinion that by offering Turkish as an option, a website is encouraging Turks to gamble, and should therefore be banned. However, the relationship between the broadcasting language and the NLA's monopoly territory was not discussed.
The Court of Appeals also discussed prevention of access from Turkey via IP number control and the position of operators lawfully licensed abroad. The main discussion centred on whether it would be necessary to ban the relevant website if (i) it were lawfully licensed in a foreign country, and (ii) it accepted participants from Turkey via IP control.
On this point, the Court of Appeals referred to Article 5 of the Regulation on Online Gaming, pursuant to which no online medium can be established or operated to facilitate gaming. Advertisements or commercials of any party operating online gaming businesses are strictly prohibited, and there can be no advertising that is misleading or encourages online gaming.
Based on this article, the Court of Appeals affirmed the local court's ruling that the online betting website homepage itself constituted an advertisement for betting, and that access to the relevant website had to be blocked.
In light of the wording of relevant Turkish court decisions, the Turkish judiciary evidently places no limits on the extent of a Turkish administrative body's monopoly power, recognising its jurisdiction beyond both the territory and citizenry of Turkey.
For example, a betting website lawfully broadcasting in English would violate domestic Turkish law. A certified company in the United Kingdom might therefore try to detect the IP number of a user to identify his/her geographic location and refuse access accordingly. Legal foreign-based companies fearful of running afoul of Turkish laws could conceivably even deny access to non-Turks attempting to use Turkish credit cards to play games of chance online outside of Turkey.
The monopoly of Milli Piyango is meant to be limited to Turkish territory, and the NLA is not supposed to be trying to exert jurisdiction over Turks and Turkish-speakers abroad. Yet Turkish courts now treat legal businesses running gambling websites as illegal, and outlaw not only the activity of online betting but even a website's homepage unless such site is duly licensed under the above-mentioned legislation.
The evaluations of the Court of Appeals are open to discussion from many angles, but what seems clear is that, in interpreting and applying laws and regulations on online betting, the Court of Appeals prefers an authoritarian approach.
Kayra Üçer and Ismet Bozoglu
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