The role of corporate social responsibility in the regulation of OTT platforms: the case of film industry and Turkish corporate law

ABSTRACT

Among the types of on-demand broadcasting, Over-The-Top video streaming services (‘OTT platforms’) refer to media service providers that provide content and applications, including communication services, over the Internet. The freedom of OTT platforms to choose which films to broadcast can have negative implications for the social and cultural aspects of the film industry and the society: First, OTT platforms often refuse to broadcast films that may cause political discontent in the countries where they operate. Second, as films can be popular tools of propaganda, OTT platforms ultimately contribute to certain views more than others through their film selection. Third, the fact that some content is denied to be broadcasted indicates that certain content creators lack sufficient access to the market through OTT platforms. As a result, reconsideration of OTT platforms’ freedom to curate their film catalogues is essential to support the development of the film industry and preserve the integrity of associated societies. This article proposes that corporate social responsibility (CSR) can be used as a method of self-regulation to create an inherent limitation on the editorial freedom of the OTT platforms leading to a fairer film selection process.

KEYWORDS:

• Corporate social responsibility
• editorial freedom
• media service providers
• corporations
• fair film selection

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 (Audiovisual Media Services Directive), Recital 5.

2 In this article, the term ‘broadcasting services’ is preferred over ‘audiovisual media services’, since EU law excludes radio broadcasting from the scope of the latter term, see Directive (n 1) Recitals 21 and 23.

3 Directive (n 1) Recital 45.

4 For different categorizations of on-demand and OTT business models, see Sedat Özel, ‘Talebe Bağlı Video Servisleri Çağında Netflix Etkisi’ (Netflix Affect in the Era of On Demand Video Services) (2020) 7 İnsan ve İnsan 115, 121.

5 IRIS Plus 2016-3: VOD, Platforms and OTT: Which Promotion Obligations for European Works? (European Audiovisual Observatory, Strasbourg, 2016) 24. Coverage of the term ‘OTT platform’ is debated, see BEREC, Report on OTT Services (2016) 3 <https://www.berec.europa.eu/sites/default/files/files/document_register_store/2016/2/BoR_%2816%29_35_Report_on_OTT_services.pdf> Accessed 05 August 2023. In this article, the term ‘OTT platform’ is used to refer to platforms such as Netflix, Disney+, and Amazon Prime Video.

6 See Directive (n 1) Recital 38, 69.

7 In this article, the term “films” is used to refer to all types of motion picture products, irrespective of their subject- wise categorization or length, including series.

8 MZ Van Drunen, ‘The Post-Editorial Control Era: How EU Media Law Matches Platforms’ Organizational Control with Cooperative Responsibility’ (2020) 12 Journal of Media Law 166, 167.

9 PWC, Perspectives from the Global Entertainment and Media Outlook 2020–2024 (2020) 9 <https://www.pwc.com/gx/en/entertainment-media/outlook-2020/perspectives.pdf> Accessed 02 March 2021.

10 Nicole Sperling, ‘An Oscar Winner Made a Khasoggi Documentary. Streaming Services Didn’t Want it’, NYT (24.12.2020), <https://www.nytimes.com/2020/12/24/business/media/dissident-jamal-khashoggi-netflix-amazon.html> Accessed 02 March 2022.

11 ‘Islamophobic UAE Financed Hollywood Film Slammed as “Shameful”’, TRTWORLD (25.06.2021), <https://www.trtworld.com/magazine/islamophobic-uae-financed-hollywood-film-slammed-as-shameful-47833> Accessed 02 March 2022.

12 Some OTT platforms are choosing not to add content that may be regarded as offensive to society, even though historically embraced by the same society, due to generational changes and shifts in societal understanding, see Alexander Hall, ‘Paramount CEO Bob Bakish warns it’s a “mistake” to censor entertainment to “reflect different sensibilities”’, Fox (23.06.2022) <https://www.foxnews.com/media/paramount-ceo-bob-bakish-mistake-censor-entertainment-different-sensibilities> Accessed 28 March 2023.

13 Adopting measures to encourage the activity and development of European audiovisual production and distribution is among the considerations of EU law, see Directive (n 1) Recital 66.

14 Fostering self-regulation is a method embraced by the EU in Directive (EU) 2018/1808 of the European Parliament and of the Council Amending Directive 2010/13/EU (Amending Directive) Article 1(6).

15 A. Vahap Darendeli, ‘Judicial Regime on Audiovisual Administrative Sanctions Developed After Decree Laws of State of Emergency’ (2017) 25 Selcuk University Faculty of Law Review 115, 121.

16 The term ‘purchase’ is used to refer to any type of arrangement between the right holders of the film and the OTT platform relating to the intellectual property rights concerning the film itself and the rights held by others.

17 See ‘Netflix, Inc. ‘FORM S-1 Registration Statement, As Filed With the Securities and Exchange Commission on March 6, 2002’ (‘Netflix Registration Statement’) 7, 37 <https://www.prospectus.com/wp-content/uploads/2018/10/netflix.pdf> Accessed 03 March 2021.

18 Behavior of corporate actors is not only shaped by law, but also by social norms (Jennifer G. Hill, ‘Transnational Migration of Laws and Norms in Corporate Governance: Fiduciary Duties and Corporate Codes’ 14 < https://www.ecgi.global/sites/default/files/working_papers/documents/hilfinal.pdf > Accessed 05 August 2023).

19 Subscribers certainly effect this selection by rating, unsubscribing, or providing feedback, but its influence is remote in the process of film selection.

20 OTT platforms differ from video-sharing platform services, as a significant share of content provided on video-sharing platform services is not under the editorial responsibility of the video-sharing platform provider; these providers only determine the organization of the content (Amending Directive (n 14) Recital 47).

21 See Netflix Registration Statement (n 17) 4.

22 Amending Directive (n 14) Article 1(d)(bb).

23 Amending Directive (n 14) Recital 54.

24 Business judgment refers to a commercial decision given by the managers of the corporation, see Franklin A. Gevurtz, ‘The Business Judgment Rule: Meaningless Verbiage or Misguided Notion?’ (1994) 67 Southern California Law Review 287, 291.

25 IRIS, Editorial Responsibility (European Audiovisual Observatory, 2008) 10.

26 See Directive (n 1) Article 1(1)(b).

27 See Directive (n 1) Article 1(1)(c).

28 Amending Directive (n 14) Recital 54.

29 Ünal Tekinalp, Sermaye Ortaklıklarının Yeni Hukuku (New Law of Stock Companies) (Vedat Kitapçılık, 2020) 443.

30 Amending Directive (n 14) Article 1(11).

31 For its definition, see Directive (n 1) Article 1(1)(n).

32 Amending Directive (n 14) Article 1(18).

33 For example, a well- known OTT platform, Netflix, states that Netflix complied with only three government requests related to content removal in 2022, and one of the complied requests was from Turkey, see, Netflix, ‘Environmental Social Governance Report 2022’ (29.06.2023) <https://s22.q4cdn.com/959853165/files/doc_downloads/2023/06/29/Netflix_2022-ESG-Report-FINAL.pdf> Accessed 07 July 2023, 51.

34 Joe Snell, ‘Turkey Investigates Reported Cancellation of Disney Plus series on Ataturk’, Washington Post (02.08.2023) <https://www.washingtonpost.com/world/2023/08/02/turkey-disney-ataturk-series-cancelled/> Accessed 04 August 2023.

35 ‘Türkiye ‘Ata’ için ayakta … RTÜK’ten inceleme, sosyal medyadan ‘abonelikler iptal’ boykotu’, Hürriyet (03.08.2023) <https://www.hurriyet.com.tr/gundem/turkiye-ata-icin-ayakta-rtukten-inceleme-sosyal-medyadan-abonelikler-iptal-boykotu-42308890>, Accessed 04 August 2023.

36 Constitutionality of a license requirement for OTT platforms broadcasting over the Internet was debated by legislators, based on the argument that Internet is not a venue requiring licensing by RTUK and that the law will eventually cause content restrictions, see ‘TBMM Dissenting Opinions’ TBMM (27.03.2018) https://www5.tbmm.gov.tr/tutanaklar/TUTANAK/TBMM/d26/c067/tbmm26067066ss0533.pdf> Accessed 05 August 2023, 116- 118.

37 In case the OTT platform’s decision to cancel the project is regarded as an unfair competition or violation of consumer protection legislation, then this decision cannot be accepted as an exercise of business judgment ‘freedom’ and should be sanctioned accordingly.

38 While both the terminology and definitions used in Law No. 6112 align with the EU law, there are differences, including the use of the term ‘broadcasting services’ rather than the umbrella term ‘audiovisual media services’, which is preferred under EU law (Official Comment to Law No. 6112, General Comments).

39 The for- profit entity called ‘corporation’ in American law is equivalent to ‘anonim şirket’ entity in Turkish law (Oguz Imregun, Amerikan Ortakliklar Hukukunun Ana Hatlari (Main Principles of American Company Law) (İstanbul Üniversitesi, 1969) 35), which is defined in TCC Article 329.

40 For example, see RTUK Decision Number: 8 Meeting Number: 2021/51 Date: 29/12/2021. The terminology of ‘broadcasting license’ is criticized based on the fact that Internet broadcasting does not fit the conventional definition of ‘broadcasting’ (Olgun Değirmenci, ‘Netflix’in Sonu mu? Düzenleme- Sansür Sarkacında Radyo, Televizyon ve İsteğe Bağlı Yayınların İnternet Ortamından Sunumu Hakkında Yönetmelik Taslağı’ (‘End of Netflix?’ Regulation Template on Radio, TV and On Demand Broadcasting Through Internet in Regulation- Censorship Pendulum) (2019) 14 Terazi Law Journal 108, 113).

41 See generally, Article 19(1) and 19(2).

42 Media service providers can be regarded as a sui generis type of legal persons, see Danıştay İBK E. 2001/1 K. 2001/4 K. 10/04/2001.

43 For example, a speech communicated by a member of the audience who randomly participates in the program by telephone to answer a question asked by the anchor may give rise to liability for media service providers, based on Law No. 6112 Article 6(4), even though the person representing the media service provider is not the one who spoke (RTUK Decision Number: 33 Meeting Number: 2015/48 Date: 11/11/2015).

44 Official Comment to Law no. 6112, General Comments. Law No. 6112 treats broadcasting license holders differently depending on the type of license they hold. As such, general broadcasting service principles include: (1) rules applicable to all media service providers; (2) rules specifically for radio and television broadcasters; and (3) rules specific to on-demand media services.

45 It must be noted that some principles in Law no. 6112 and the Regulation limit the editorial decisions of platform operators. Platform operators shall offer services to media service providers under neutral, fair, reasonable, and non-discriminatory conditions (Article 29). However, OTT platforms are not regarded as ‘platform operators’, since this term refers to ‘an enterprise that transforms multiple media services into one or more signals and provides their transmission through satellite, cable, and similar networks either in an encoded or unencoded mode in a way that is directly accessible to the viewers’ (Law no. 6112 Article 3(1)(p)). A similar limitation on editorial decisions applies to platform operators for Internet broadcasting, see, Regulation Article 17(1)(ç). On the other hand, the obligation of radio and television institutions to broadcast certain content and news as articulated in Law no. 6112 does not relate to films (for instance, see Article 7, 14, 15).

46 Relying on this provision, courts emphasize that both the content and format of broadcasted programs should comply with the law, see Danıştay 13. D. E. 2018/3081 K. 2020/685 T. 02/03/2020.

47 Regarding the enforcement actions that RTUK can initiate, see Sezgin Baş, ‘6112 Sayılı Radyo ve Televizyon Kuruluş ve Yayın Hizmetleri Hakkında Kanun’da Düzenlenen İdari Yaptırımlar’ (Administration Sanctions in 6112 numbered Law) in Zeynel T. Kangal (ed), Kabahatler Hukuku Yazıları II (12 Levha Yayıncılık, 2018) 237, 241.

48 Official Comment to Law no. 6112, Article 6(3). This rule, read in conjunction with Article 8(1)(j), is interpreted as a rule limiting instances of unfair competition, see A. Vahap Darendeli, ‘Medya Yoğunlaşması, Tekelleşmenin Denetimi ve Çoğulculuğun Kurulması’ (Media Concentration, Control of Monopolization and Establishment of Pluralism) (2007) 68 TBB Dergisi 94, 128.

49 This term refers to ‘television broadcasting services, on-demand media services, as well as commercial communication and radio broadcasting services, with the exception of individual communication services under the editorial responsibility of a media service provider and the principal purpose of which are the provision of programs to inform, entertain or educate the general public by electronic communications networks’ (Law No. 6112 Article 3(1)(ff)).

50 A cursory examination of these decisions shows that, for example, requesting money from the viewers to generate income for the media service provider (RTUK Decision Number: 7 Meeting Number: 2013/43 Date: 17/07/2013, RTUK Decision Number: 23 Meeting Number: 2013/40 Date: 03/07/2013) is a violation of Law no. 6112 Article 6(3). Moreover, Article 6(3) is applied in conjunction with Article 8(1)(j) since money is requested from the viewers through content broadcasted by the media service provider (RTUK Decision Number: 6 Meeting Number: 2013/43 Date: 17/07/2013, RTUK Decision Number: 30 Meeting Number: 2013/52 Date: 10/09/2013, RTUK Decision Number: 24 Meeting Number 2013/48 Date: 20/08/2013).

51 On the other hand, under EU law, media service providers of on-demand audiovisual media services should secure at least a thirty percent share of European Works in their catalogues (Amending Directive (n 14) Article 1(18)).

52 Law no. 5651 provides four different access-blocking procedures: blocking access to content on grounds of confidentiality of private life (Article 9A); removal of content from publication and blocking of access in case of violation of personality rights (Article 9); removal of content or blocking of access in circumstances (prevention of crime; protection of public health; national security, public order; protection of the right to life and life, and security of property) where delay would entail risk (Article 8A); and the decision to deny access and removal of content based on the articulated crimes (Article 8).

53 See Danyelle Guyatt, ‘Corporate Social Responsibility: The Case of Long- Term and Responsible Investment’ in Alan Lewis (ed), The Cambridge Handbook of Psychology and Economic Behavior (Cambridge University Press, 2008).

54 European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs, ‘Corporate Social Responsibility (CSR) and Its Implementation into EU Company Law’ (2020), <https://www.europarl.europa.eu/RegData/etudes/STUD/2020/658541/IPOL_STU(2020)658541_EN.pdf> Accessed 28 March 2023, 8. ‘Corporate responsibility involves the search for an effective ‘fit’ between businesses and the societies in which they operate. The notion of ‘fit’ recognizes the mutual dependence of business and society- a business sector cannot prosper if the society in which it operates is failing’, see OECD, ‘Corporate Responsibility’, (2001) <https://www.oecd.org/daf/inv/corporateresponsibility/35315900.pdf > Accessed 05 August 2023.

55 Andrew Crane and others, ‘The Corporate Social Responsibility Agenda’ in Andrew Crane and others (eds), The Oxford Handbook of Corporate Social Responsibility (Oxford University Press, 2008) 3.

56 Rebecca Stratling, ‘The Legitimacy of Corporate Social Responsibility’ (2007) 4 Corporate Ownership and Control 80, 80.

57 Archie B. Carroll, ‘A Three-Dimensional Conceptual Model of Corporate Performance’ (1979) 4 The Academy of Management Review 497, 500. See Li- Wen Lin, ‘Mandatory Corporate Social Responsibility? Legislative Innovation and Judicial Application in China’, (2020) 68 The American Journal of Comparative Law 576, 577.

58 Dan Pontefract, ‘Stop Confusing CSR With Purpose’, Forbes (18.11.2017), <https://www.forbes.com/sites/danpontefract/2017/11/18/stop-confusing-csr-with-purpose/?sh=2166f8603190>, Accessed 04 March 2023.

59 Crane (n 55) 4.

60 Fred Robins, ‘The Future of Corporate Social Responsibility’ (2005) 4 Asian Business and Management 95, 98.

61 Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’ (Communication) COM (2011) 681 final, 6.

62 See, generally, Jingchen Zhao, ‘Promoting More Socially Responsible Through A Corporate Law Regulatory Framework’ (2017) 37 Legal Studies 103.

63 Mallika Tamvada, ‘Corporate Social Responsibility and Accountability: A New Theoretical Foundation for Regulating CSR’ (2020) 5 International Journal of Corporate Social Responsibility 1, 5.

64 Commission (n 61) 6.

65 Policy (n 54) 8.

66 Recital 3.

67 Policy (n 54) 8.

68 Policy (n 54) 27.

69 Policy (n 54) 15.

70 Li-Wen Lin, ‘Mandatory Corporate Social Responsibility Legislation Around the World: Emergent Varieties and National Experiences’ (2020) 23 University of Pennsylvania Journal of Business Law 430, 459.

71 Under the Turkish system, only a corporation may become publicly traded (CML Article 3(1)(e)). A corporation may be considered publicly traded if (1) its shares are traded on a stock exchange, (2) its number of shareholders exceeds five hundred, except for corporations that raised funds through equity crowdfunding or (3) its shares are offered to the public (CML Article 3(1)(e) and Article 16(1)). Accordingly, publicly traded status is tied only to shares, rather than to other types of securities (Tekin Memiş, Gökçe Turan, Sermaye Piyasası Hukuku (Capital Market Law) (Seçkin 2019) 54). A corporation deemed publicly traded should apply to the stock exchange to have its shares traded within two years (CML Article 16(2)) unless an exception applies (CML Article 33).

72 İsmail Kırca and others, Anonim Şirketler Hukuku (Law of Corporations) Vol. 1 (BTHAE 2013) 275 ; Hasan Pulaşlı, ‘Kurumsal Sosyal Sorumluluk Bağlamında Uluslararası İnsan Hakları ve Çevre Standartlarının Çok Uluslu Şirketlerin Merkez Yönetim Organının Hukuki Sorumluluğuna Etkisi’ (Effect of International Human Rights and Environmental Standards to Central Management Organ’s Civil Liability in Relation to Corporate Social Responsibility) (2020) 36 BATIDER 5, 21. While some commentators opine that principle of equal treatment of shareholders (TCC Article 357) covers all stakeholders (see Pelin Özçelik, ‘The Shareholder Primacy Model in the Light of American and English Company Law and an Assessment of the Effects of This model on the Companies’ (2021) 16 ERÜHFD 59, 112- 113), word of this law is only indicating shareholders and its scope should not be expanded by way of interpretation.

73 Muzaffer Eroğlu, ‘How to Achieve Sustainable Companies: Soft Law (Corporate Social Responsbility and Sustainable Investment) or Hard Law (Company Law)’ (2014) 2 Kadir Has Üniversitesi Hukuk Fakültesi Dergisi 87, 99. Closely held corporations are not obligated to apply corporate governance principles (TCC Article 1529), see Poroy and others, Ortaklıklar Hukuku I (Law of Companies I) (Vedat Kitapçılık 2021) 363.

74 Pulaşlı (n 72) 22. Deniz Okuyucu, Anonim Şirketin Sosyal Sorumluluğu (Social Responsibility of Corporations) (On İki Levha 2023) 309- 317.

75 Pulaşlı (n 72) 23. Compliance obligation covers not only national law but also laws of countries of presence and international law for multinational corporations, see Hasan Pulaşlı, ‘Significant Developments in Recent Years in the Law on Public Joint Stock Companies’ (2021) 27 MÜHFHAD 414, 435.

76 Sibel Hacımahmutoğlu, ‘The Business Judgment Rule: İş Adamı Kararı mı Yoksa Ticari Muhakeme Kuralı mı?’ (2014) 30 BATIDER 99, 134. TCC Article 391 on void board of directors’ resolutions also shape business judgment freedom of the board of directors in relation to corporation’s interest, see Okuyucu (n 74) 317.

77 Sean J. Griffith, ‘Corporate Governance in an Era of Compliance’ (2016) 57 Wm. & L. Rev. 2075, 2114. Under some circumstances, compliance can become relevant to the duty of loyalty, see Michael Nietsch, ‘Corporate Illegal Conduct and Directors’ Liability: An Approach to Personal Accountability for Violations of Corporate Legal Compliance’ (2018) 18 Journal of Corporate Law Studies 151, 176.

78 Rıfat Cankat, Mehmet Helvacı, ‘Karşılaştırmalı Hukukta Şirketin Menfaati Kavramı’ (Company’s Interest Conception in Comparative Law) in Ziya Akıncı and Candan Yasan Tepetas (eds) Şirketler Hukuku Uyuşmazlıkları ve Tahkim (12 Levha Yayıncılık 2019) 521, 521.

79 See Mehmet Helvacı and others, ‘Özellikle Anonim Şirket Açısından Şirket Menfaati Kavramı’ (Company’s Interest Conception in Relation to Especially Corporations), in Prof. Dr. Hamdi Yasaman’a Armağan (12 Levha Yayıncılık, 2017) 309, 312.

80 Mehmet Helvacı, ‘21. Yüzyılda Anonim Ortaklığa İlişkin Düşünceler ‘Tüzel Kişiye ve Bir Örnek Olarak Kar Payı Kavramına Belki Olması Gereken Farklı Bir Bakış’ (Thoughts About Corporations in 21. Century: A Different Maybe Necessary View for Dividend Concept and Legal Personality) in Havva Karagöz and others (eds) Tüzel Kişilik Penceresinden Anonim Ortaklık Sempozyumu (12 Levha Yayıncılık, 2021) 3, 5. The notion that TCC endorses ‘entity theory’ for corporations more than ‘contractual theory’ (Kırca and others (n 72) 250), supports this view. For theories of the corporation, see David Millon, ‘Theories of the Corporation’ (1990) 39 Duke Law Journal 201.

81 Helvacı (n 80) 6. Considering the interest of the corporation does not oblige to ultimately consider shareholder interests, see Pulaşlı (75) 417.

82 Helvacı (n 80) 7.

83 Burak Adıgüzel, ‘Anonim Şirketlerde Bağış ve Yöneticilerin Sorumluluğu’ (Donations in Corporations and Liability of Directors) (2019) 14 Terazi Hukuk Dergisi 58, 65.

84 Hacımahmutoğlu (n 76) 134.

85 Hacımahmutoğlu (n 76) 135. TCC Article 331 on corporate purpose does not preclude the corporation from being managed for the benefit of all stakeholders, see Okuyucu (n 74) 305- 309.

86 Oğuz İmregün, Kara Ticareti Hukuku Dersleri (Commercial Law Courses) (Evrim Dağıtım 1987) 263.

87 In case a corporation’s articles of incorporation includes a phrase such as ‘protection of environment’, this should not be interpreted as its corporate purpose but be interpreted as a general order to the board of directors, see Sevilay Uzunallı, Anonim Şirkette İşletme Konusu (Operation Subject in Corporations) (Adalet 2013) 9.

88 See TCC Article 519, 523.

89 Poroy and others (n 73) 307. A dividend policy aiming not to distribute dividend to shareholders would violate the basic structure of corporations and TCC Article 531 on involuntary dissolution prohibits such policy, see Tekinalp (n 29) 359. About the function of involuntary dissolution statutes, see Murat Can Pehlivanoğlu, Non- Pecuniary Private Benefits in Publicly Traded Corporations: How Involuntary Dissolution Statute May Be the Solution (Brill 2024).

90 Some argue that the ultimate interest of a corporation is to continue its legal existence (sustainability), see Cankat and Helvacı (n 78) 549.

91 About the concept of ‘corporate governance’, see Hasan Pulaşlı, Corporate Governance (BTHAE 2003).

92 An English translation of the Communique is available at CMB, <https://www.cmb.gov.tr/SiteApps/Teblig/File/479>, Accessed 06 March 2021.

93 Available at CMB, < https://spk.gov.tr/data/63a17b1a8f95db0fa40e3309/sürdürülebilirlik%20ilkeleri%20uyum%20cercevesi.pdf> Accessed: 06 August 2023.

94 See Fatma Beril Özcanlı, ‘Sosyal Eşitsizliğin Giderilmesi ve İnsan Hakları Cephesinden Sürdürülebilir Bir Şirketler Hukuku’ (Remedying Social Inequality and Sustainable Company Law in Relation to Human Rights) in Havva Karagöz and others (eds), Tüzel Kişilik Penceresinden Anonim Ortaklık Sempozyumu (12 Levha Yayıncılık, 2021) 177, 192-193.

95 Ersin Çamoğlu, Anonim Ortaklık Yönetim Kurulu Üyelerinin Hukuki Sorumluluğu (Civil Liability of Corporate Board of Directors) (Vedat Kitapçılık 2010) 68.

96 Adıgüzel (n 83) 65.

97 The way to exercise such an understanding can be exemplified through the Law on Evaluation and Classification of Films and Support, which requires that films to be screened in movie theatres for the first time may not be broadcasted by OTT platforms for commercial purposes with a fee within five months of the date of the first screening in movie theatres (Regulation on the Procedures and Principles Concerning Evaluation and Classification of Films, Article 10(2)). The objective of this prohibition is to protect the consumers.

98 Commission Staff Working Document on Corporate Social Responsibility, Responsible Business Conduct, and Business & Health Rights: Overview of Progress, European Commission, Brussels 20.03.2019, 2.

99 ‘Constituency statutes expand the protection of the business judgment rule by permitting, not mandating, directors to consider non-shareholder constituents. In other words, directors would not face liability for actions justified, in part, by serving non-shareholder interests’ (Christopher Geczy and others, Institutional Investing When Shareholders Are Not Supreme (2015) 5 Harvard Business Law Review 73, 95).

100 Francis v. United Jersey Bank (1981) 87 NJ 15.

101 Study on Directors’ Duties and Sustainable Corporate Governance, Final Report, European Commission B- 1049 (Brussels, July 2020) 61.

102 Commission (n 61) 3.

103 Commission (n 61) 3.

104 See RTUK Decision Number: 7 Meeting Number: 2020/36 Date: 03/09/2020.

105 In EU law, fair treatment of persons providing their services to public through online platforms is also considered important in the context of e- commerce platform’s right to delist its business users, see Murat Can Pehlivanoğlu, ‘Internal Complaint- Handling Systems of Online Platforms, Commercial Law and the Board of Directors’ Duty of Care’ (2021) 14 John Marshall Law Journal 168.

106 For example, a well- known OTT platform, Netflix, has a directive for its employees emphasizing the importance of not censoring specific artists or voices even if the employees consider the content harmful, see Todd Spangler, ‘Netflix Updates Corporate Culture Memo, Adding Anti- Censorship Section and a Vow to Spend Our Members Money Wisely’ Variety (12 May 2023) <https://variety.com/2022/digital/news/netflix-culture-memo-update-censorship-spending-1235264904/> Accessed 05/04/2023.

107 In this regard, it is argued that on-demand media services have an interest in broadcasting a certain amount of local cultural content, as corporations should ideally act to the benefit of the consumers, see Antonios Vlassis, ‘The Review of the Audiovisual Media Services Directive. Many Political Voices for One Digital Europe?’ (2017) 56 Dans Politique Europeenne 102. Similarly, OTT platforms, just like TV channels, need to retain their subscribers by providing satisfactory original content, see Özel (n 4) 130.

108 The board of directors’ duty to act in the interest of the corporation ultimately determines which interest (shareholder or stakeholder) to follow, see Kırca and others (n 72) 277.

109 Darendeli (n 48) 128.