Turkey: Legal Aspects Of Throttling

In some cases, a video displayed at a video sharing website or a photo from one of the websites providing social networking service or an application downloaded to a smartphone or just an article from a news portal website might not be reviewed as the internet connection might be extremely low to upload or download any content. The reason might be the throttling that the user's internet service provider possibly applies. Throttling means the intentional slowing of internet services, applications or content by internet access providers ("ISPs").

Recently Turkey became a target of many terrorist attacks in certain intervals. Right after one of these recent terrorist attacks which occurred at Istanbul Ataturk Airport on June 28th, 2016 and left at least 41 people dead and 230 people wounded, people were not able to download or upload any content due to the slowness of the internet connection speed in Turkey. Following the terrorist attack, many users had experienced difficulties on access to the hosting platforms and were unable to view or broadcast any content which were actually available on the internet. Although there was no legal restriction on the internet services that people tried to use and share content through, they still could not access to the contents as the request sent by the user has been technically timed out or the connection was too slow and the contents were not able to be accessed properly. These difficulties raised the discussions of whether there has been throttling for these services in Turkey.

Net neutrality is the purpose that Europe has been discussing to achieve for quite some time, to determine the standards and to enable free movement of internet and data around the Europe. As a result of a need in net neutrality, ISPs are expected not to throttle their users' internet connections and intentionally slow access to the websites and applications or any other internet services. The idea behind net neutrality is that ISPs, as a principle, should treat all the data that the users upload or download over the networks equally, without making discrimination in favor of particular applications, websites or any other internet related service to protect the future of open internet. Throttling, and particularly bandwidth throttling which is one of the most frequent kind of throttling that we face in our daily life becomes a disputed issue especially in Turkey.

Throttling may appear in different ways. One of them is the throttling due to network protection. In this type of throttling, the ISP aims to hinder end users' access to protect from spams or viruses in order to protect the network. This type of throttling also appears as congestion management. In some cases, ISPs apply traffic management tools to manage congestion on the connection for their services to continue. This action allows ISPs to reduce the data amount which they need to process and thus enables them to make savings since producing data costs. Another type of throttling is the data cap. Some of the ISPs may provide their internet services based on a data cap. Once the user reaches to the relevant data cap that the ISP and the user agreed on, the ISP may apply throttling in order to prevent overuse of internet service and to prevent charging the user for extra prices as data caps provide price signal to the user in order to inform him/her that s/he alrady reached out to the relevant data cap. This limit of the cap is the fair use limit that the ISP has determined in their policies. This type of throttling is a technical throttling through a contract. Another type of throttling is the one applied to a particular content or application. This type of throttling usually occurs on the particular content or an application that throttling is decided to be applied on such as child profile. For instance, a parent may request from the agreed ISP to slow his/her child's internet speed to adult websites. Lastly, as also indicated above, the most frequent type of throttling is the bandwidth throttling where the ISP reduces the speed of the internet connection in order to hinder its user to access any content or the website which is actually available but the user may not be able to access due to the internet connection speed. For instance, in Comcast Corp. v. FCC case, two non-profit advocacy organizations Free Press and Public Knowledge, filed a complaint with the Federal Communications Commission ("FCC") stating that Comcast's actions violated the FCC Internet Policy Statement, particularly the principle indicating that the consumers are entitled to access the lawful internet content of their own choice and to run applications and use services of their choice. These last two types of throttling were especially discussed in Turkey particularly after the terrorist attacks.

Throttling is actually a way of slowing access to the internet, without requiring a legal ground, through the decisions given either by the administrative authorities or the ISP's themselves. Authority to throttle the internet connection is not provided by the laws and particularly bandwidth throttling should be deemed violating certain fundamental and constitutional rights. Although there is no decision rendered by the courts with respect to the throttling, this action may raise significant issues as to the prevention and violation of freedom of information and speech even if the connection is not entirely banned. Bandwidth throttling prevents the end user to use his/her internet connection properly and access the contents although it appears that they have Internet connection. The throttlings are actual access bans that apply to entirety of websites, such as social media platforms, without a court decision which in fact is not regulated under Turkish law. The Constitutional Court considers access banning entirety of a website, even with a court order, violating freedom of expression and accordingly information, and against the Constitution. By way of analogy, the throttlings should also be deemed against the Constitution, since they violate the freedom of expression and accordingly information as well, this time without even obtaining a court order.

This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2016. A link to the full Legal Insight Quarterly may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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