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The Legal Infrastructure of Throttling Internet Access and Bandwidth Reduction Practices (In Turkey)
A) General Framework
The subject matter of this article is the legal infrastructure governing "bandwidth reduction"—a concept that has recently settled into our internet law legislation and judicial practice—and the resulting throttling of internet traffic speeds directed toward relevant online platforms. Although Article 6 of Law No. 5651, in setting forth the obligations of access providers, does not explicitly articulate this mechanism nor institute a specific penal norm in this direction, it remains an absolute legal imperative for access providers to comply with decisions mandating bandwidth reduction.
Explicit statutory provisions governing this practice are codified in Additional Article 4 of Law No. 5651 regarding social network providers, and in Article 60/17 of the Electronic Communications Law regarding over-the-top (OTT) service providers. A number of other provisions, such as Article 60/10 of the Electronic Communications Law, empower the execution of this measure despite lacking explicit textual reference to the terminology itself.
B) Statutory Circumstances Authorizing the Throttling of Internet Traffic
1) The Requirement of an Explicit Order
Pursuant to both the Universal Service Law and the Electronic Communications Law, access provider undertakings—which are legally bound to deliver internet access services as a public service meeting the highest attainable technical standards—are precluded from arbitrarily throttling internet traffic directed toward specific platforms. For access providers to execute such measures, they must be acting in execution of a binding judicial or administrative order. Orders of this nature may solely be rendered pursuant to the specific statutory provisions detailed below.
a) Inapplicability of Access-Blocking Orders as Bandwidth Reduction
Article 2/1-o of Law No. 5651, in defining the blocking of access, employs the phrase "blocking access from domain names, blocking access from IP addresses, URL-based access blocking, and similar methods." By virtue of the phrase "and similar methods" within the statutory definition, drawing an exhaustive boundary around access-blocking techniques under Law No. 5651 proves difficult. However, pursuant to the literal text of the norm, these methods must remain analogous to domain, IP, or URL-based blocking techniques. Although reducing bandwidth by nearly 100% renders access to a platform practically impossible—yielding a result virtually identical to access-blocking—bandwidth reduction does not constitute a statutory method of blocking access per se. Consequently, executing access-blocking orders rendered under Law No. 5651 or other statutory norms through bandwidth throttling is legally impermissible.
b) Statutory Orders Authorizing Bandwidth Reduction
b.1. Pursuant to Additional Article 4/2 of Law No. 5651, a five-stage escalation of sanctions is prescribed for social network providers failing to fulfill the obligation to appoint and declare a local representative. At one stage of this statutory hierarchy, an advertising ban is imposed; if the representation requirement remains unfulfilled within three months following the advertising ban order, the President of the Information and Communication Technologies Authority (BTK) may petition the Peace Judgeship of Criminal Matters for a 50% bandwidth reduction of the social network provider's internet traffic.
If the obligation remains unfulfilled within thirty days following the execution of the judicial order granting the petition, the President of the BTK may apply to the Peace Judgeship of Criminal Matters to request a further reduction of the social network provider's bandwidth by up to 90%. Upon this second petition, the judge may determine a lower percentage—provided it is not below 50%—taking into account the nature of the service offered. Judicial orders mandating bandwidth reduction are transmitted to the BTK for service upon access providers, and access providers must execute the mandate immediately and within four hours of notification at the latest.
b.2. Pursuant to Additional Article 4/5 of Law No. 5651, enacted in 2022, where information required to identify perpetrators originating or disseminating content subject to specific offenses under the Turkish Penal Code (TPC)—namely sexual abuse of children (Art. 103), publicly disseminating misleading information (Art. 217/A), disrupting the unity and territorial integrity of the State (Art. 302), offenses against the constitutional order and its functioning (Arts. 309, 311, 312, 313, 314, 315, 316), and offenses against state secrets and espionage (Arts. 328, 329, 330, 331, 333, 334, 335, 336, 337)—is requested by the public prosecutor during the investigation stage or by the trial court during the prosecution stage, the Turkish representative of the social network provider is statutorily compelled to surrender this information to the judicial authorities. Where log records are withheld by the social network provider in non-compliance with this criminal procedural obligation, the statute empowers the relevant public prosecutor to petition the Ankara Peace Judgeship of Criminal Matters for a 90% bandwidth reduction of the foreign-based social network provider's internet traffic. The resulting judicial order is transmitted to the BTK for service, and access providers must execute the measure immediately and within four hours of notification at the latest.
b.3. Furthermore, pursuant to Additional Article 4/10 of Law No. 5651, introduced via the 2022 amendments (without prejudice to administrative measures under Articles 8 and 8/A), where a content removal or access-blocking order issued exclusively by the President of the BTK remains unexecuted, the President may petition the Peace Judgeship of Criminal Matters for an order reducing the social network provider's bandwidth by 50% until full compliance, alongside an advertising ban. If the social network provider fails to execute the content removal or access-blocking order within thirty days following notification of the judicial 50% bandwidth reduction order, the President may reapply to the Peace Judgeship of Criminal Matters for a bandwidth reduction of up to 90%. Orders issued by the judge are transmitted to the BTK for service upon access providers, who must execute the mandate immediately and within four hours of notification at the latest.
b.4. Pursuant to Article 9/14 of the Electronic Communications Law, the BTK is empowered to issue necessary regulations governing the provision of over-the-top (OTT) services and to adopt all necessary measures, including imposing obligations upon operators, to ensure the prevention of unauthorized OTT service provision or provision in non-compliance with prescribed statutory duties. Under the same paragraph, OTT service providers are classified as operators with respect to specific rights and obligations determined by the BTK according to the nature of OTT service provision, thereby binding them to specific statutory obligations prescribed for network operators (access providers).
Pursuant to Article 60/16 of the Electronic Communications Law, an administrative fine ranging from one million TRY to thirty million TRY may be imposed upon OTT service providers offering services without authorization or in breach of obligations set forth in Article 9. Following the administrative fine, pursuant to Paragraph 17 of the same article, where the OTT service provider fails to pay the fine within the prescribed period and persists in non-compliance or unauthorized service provision within six months following notification by the BTK, the BTK may order a bandwidth reduction of up to 95% of the OTT service provider's internet traffic or order the blocking of access to the relevant application or website. Where bandwidth reduction is selected under these discretionary remedies, the administrative order is transmitted to the Access Providers Association (ESB) for execution by access providers.
2) The broad general clause empowering traffic throttling:
The aforementioned provisions govern specific scenarios. However, another statutory norm possessing a substantially broader and partially open-ended scope of application serves as an additional legal basis for bandwidth reduction measures. This norm is codified under Article 60/10 of the Electronic Communications Law, which dictates: "In cases where delay entails peril based on one or more grounds enumerated in Article 22 of the Constitution, the Presidency determines the necessary measures and notifies the Authority for execution. The President of the Authority immediately communicates the decision regarding the measures deemed necessary by the Presidency to operators, access providers, data centers, and relevant content and hosting providers. The requirements of this decision shall be executed immediately and within two hours at the latest from the moment of notification. This decision shall be submitted for approval to the peace judge of criminal matters within twenty-four hours. The judge shall announce his decision within forty-eight hours; otherwise, the decision automatically lapses ipso jure."
While this mechanism closely resembles Article 8/A of Law No. 5651, significant distinctions exist between the two norms. The authority referenced in the provision is the BTK, and the grounds for restriction under the relevant constitutional article are sweeping, encompassing national security, public order, crime prevention, protection of public health and public morals, or the protection of the rights and freedoms of others. Where delay entails peril in blocking access under such circumstances, measures determined by the Presidency are executed through the BTK. Because the provision imposes no explicit statutory limitation, a wide spectrum of measures—ranging from content-based or full access-blocking of websites and applications to internet traffic throttling and related measures—is rendered legally permissible in accordance with general principles of law. It is highly probable that technical bandwidth reduction operations executed following the Taksim terrorist attack and the earthquake disaster were anchored upon this specific statutory norm.[1]
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