Türkiye’s Draft OTT Regulation: Balancing Innovation, Consumer Rights and Digital Freedom
Türkiye is stepping into the global debate on regulating Over-The-Top (OTT) services with its March 7, 2025, “Draft Amendment to the Electronic Communications Sector Authorization Regulation.” This Türkiye’s draft OTT Regulation targets platforms like WhatsApp, Zoom, Telegram, and Skype, aiming to bring them under Turkey’s legal framework.
Türkiye’s Draft OTT Regulation
Structured around five key provisions, it defines OTT services, exempts smaller players (such as local messaging apps) or incidental communication tools (like in-game chats) from authorization, mandates larger providers to establish a Turkish company and align with telecom obligations (network security, data protection, universal service contributions), imposes penalties ranging from 1 million to 30 million TRY, bandwidth throttling up to 95%, and access bans for non-compliance, and sets a transition period until January 1, 2026.
In a country where mobile internet speeds lag 19% below the global average at 49.76 Mbps OTTs leverage this fragile infrastructure, eroding traditional telecom revenues. The draft seeks to address this imbalance, but questions linger about consumer rights and digital freedom.
Rooted in Law No. 5809: A Legal Blueprint
This draft builds on amendments to Türkiye’s Electronic Communications Law No. 5809, introduced in 2022 via Law No. 7418. The law defined OTTs as “communication services independent of operators,” required local incorporation, aligned them with telecom duties, and empowered the Information and Communication Technologies Authority (BTK) to regulate. The draft translates this into action: WhatsApp might need a Turkish subsidiary, Zoom could report security incidents to BTK. Fines of 1-30 million TRY and 95% bandwidth throttling mirror the law, with an added 6-month-plus-3-month timeline for access bans. It’s a practical extension of Law No. 5809, turning broad strokes into enforceable rules.
Why This Move? Competition, Control, and Revenue
The draft responds to a seismic shift in Türkiye’s telecom landscape. OTTs have disrupted the stage: according to TELKODER, inflation-adjusted sector revenues have plummeted to 2003 levels (TELKODER 2023 Report). WhatsApp has sidelined SMS, Zoom has overtaken conference calls.
The goal is threefold: level the playing field with telecom giants like Türk Telekom, Turkcell and Vodafone, tighten oversight on security (think Telegram’s illicit content) and data protection (WhatsApp breaches), and offset revenue losses through contribution fees. With Turkey’s fiber penetration at a mere 7.92% (BTK 2023 Data, [btk.gov.tr]), OTTs thrive on weak infrastructure. Echoing the EU’s Electronic Communications Code (EECC) (Directive 2018/1972, [eur-lex.europa.eu]), Türkiye aims to integrate OTTs into its regulatory fold, but the consumer angle remains murky.
What’s Inside Türkiye’s Draft OTT Regulation? Strengths and Gaps
The draft’s details reveal both ambition and blind spots. Its OTT definition is clear, yet vague phrases like “services where communication isn’t primary” (e.g., gaming chats) leave room for debate.
The user threshold exemption is sensible, but undefined—500,000 or 1 million users?—leaving it to BTK’s discretion. Requiring local companies and telecom parity (e.g., Zoom reporting data breaches) is a bold move.
Penalties are robust: 30 million TRY fines, 95% throttling, and access bans signal intent, though VPN usage, as seen with Telegram, could undermine them. The 2026 transition offers breathing room.
Gaps persist: no incentives for infrastructure (fiber remains a bottleneck), and consumer rights are sidelined. Turkey’s fixed broadband speed is half the global average at 48 Mbps (Speedtest Global Index 2023, [speedtest.net]); regulating OTTs without bolstering this foundation feels incomplete.
Consumer Rights: The Forgotten Stakeholder
Here’s where the draft stumbles: consumers—millions using WhatsApp, Zoom, or Telegram daily—are left in the shadows. In traditional telecom, a Türk Telekom subscriber can claim compensation for outages under BTK rules (BTK Consumer Rights Regulation). With OTTs? Silence. If WhatsApp drops messages or Zoom crashes mid-meeting, users have no recourse. Türkiye’s Draft OTT Regulation mentions “consumer protection” (Article 3/3/b), but it’s a hollow nod—no specifics on remedies or guarantees.
Take the Personal Data Protection Authority’s (KVKK) action against Twitter/X: the platform misused email and phone data for ads, breaching Law No. 6698’s principles of legality and purpose limitation, earning a 1.47 million TRY fine (Anadolu Agency). Yet, the millions of Turkish users whose data was compromised got nothing—no compensation, no clear path to redress. An OTT like WhatsApp facing a similar breach under this draft would leave consumers equally stranded.
Why this gap? Regulators seem fixated on competition and security, sidelining users. OTTs’ global nature complicates local remedies—how does Zoom’s U.S. HQ compensate a Turkish user? The EU’s EECC mandates service quality assurances (EECC Article 104); Türkiye’s silence here, with WhatsApp usage at 90% (We Are Social 2024, [wearesocial.com]), risks alienating its digital citizens.
OTT vs. Social Network Providers: A Tale of Two Regimes
OTT providers meet social network providers at a regulatory crossroads. Türkiye’s draft OTT Regulation pegs OTTs as “services delivering voice, text, or video over the internet”—think WhatsApp, Zoom, Telegram, Skype, Microsoft Teams. Law No. 5651 defines social network providers as “platforms for user-generated content” (Law No. 5651, Additional Article 4)—Twitter/X, Facebook, Instagram, YouTube, TikTok.
Overlaps exist: WhatsApp’s messaging is OTT, its status updates lean social; Facebook’s Messenger is OTT, its feed is social. The divide? OTTs prioritize communication (Zoom calls), social networks content (YouTube videos). In Türkiye, WhatsApp dominates at 90%, while Twitter hovers at 30% (We Are Social 2024), underscoring OTTs’ deeper daily impact.
Parallels and Divergences
Both regimes tether global giants to Türkiye: 5651 demands a representative, Türkiye’s draft OTT Regulation a company. Penalties align—5651’s 10-30 million TRY fines and 50-90% throttling versus the draft’s 1-30 million TRY, 95% throttling, and bans. Public order and user rights are shared goals.
Differences stand out: 5651’s 1 million daily access threshold is explicit, the draft’s “monthly user threshold” vague. 5651 pushes content moderation and data localization, the draft contribution fees and network security. Twitter complied with 5651 via a real person (BTK Announcement, 2021); the draft would force Zoom into a corporate shell.
Lessons from 5651: A Cautionary Tale
Four years of 5651 offer a preview. Twitter/X bowed to bandwidth throttling in 2021, appointing a representative; YouTube and Facebook followed. Content removal worked—illicit tweets vanished fast. But VPNs neutered throttling, data localization stalled, transparency reports faltered, and public backlash grew. OTTs face similar risks: WhatsApp throttling could be bypassed by VPNs (30% of Turks use them, Global VPN Usage 2023, [surfshark.com]); a Zoom ban might spark business outrage. Türkiye’s draft OTT Regulation’s tougher stance (direct access bans) may not escape these traps.
Real-World Impact: Scenarios
Picture this: WhatsApp skips incorporation—30 million TRY fine, throttling, maybe a ban, yet VPNs keep it alive. Zoom balks—access blocked, disrupting work, possibly exiting Turkey. Telegram, already VPN-reliant, shrugs off the draft. A local OTT under the threshold thrives. The stakes are high, the outcomes mixed.
The Censorship Critique: Freedom at Risk?
Critics cry foul: is this censorship? Forcing OTTs into local rules could choke digital freedom. WhatsApp reporting data might invite state snooping; Telegram bans could silence dissent. 5651’s Twitter throttling during the 2023 earthquake fueled censorship claims (BBC Türkçe, 2023), as communication faltered. Groups like the EFF warn of internet liberty erosion (EFF Report, 2023). Türkiye counters with security needs—Telegram’s criminal underbelly justifies it. Consumer rights suffer too: users face service cuts without redress. It’s a tightrope between control and liberty.
Convergence: Where Does the Draft Stand?
Electronic communications (Law No. 5809) and IT law (Law No. 5651) are merging. The draft straddles this line, pulling OTTs into telecom rules while nodding to IT law (data protection). WhatsApp’s chats fall here, its posts there—overlap looms. A unified “Digital Communications Law” needs more consumer and infrastructure focus.
Administrative Law Concerns: Too Much Power to BTK?
Unlike 5651’s direct statutory rules, OTTs get a broad 5809 framework, fleshed out by the draft and BTK discretion (e.g., user threshold). This raises red flags under Turkey’s Constitution (Article 123): key scope decisions should be legislative, not administrative. It risks arbitrariness and could face constitutional scrutiny.
Verdict: Enough or Falling Short?
Türkiye’s draft OTT Regulation lays a solid foundation for competition and oversight, but stumbles. Vague thresholds, no infrastructure boost, neglected consumer rights, digital freedom debates, and BTK overreach cloud its promise. Türkiye needs clarity, user focus, and a balanced approach to thrive digitally.
Annex 1:Türkiye’s Draft OTT Regulation
Draft Amendment to the Electronic Communications Sector Authorization Regulation
Below is the English translation of the Türkiye’s Draft OTT Regulation amendment (Annex 1) as published by the Information and Communication Technologies Authority (BTK):
- Decision Date: March 7, 2025
- Decision Number: 2025/1 K-YED/70
- Meeting Number: 09
Article 1 – The following subparagraphs (ççç) and (ddd) are added to the first paragraph of Article 4 of the “Electronic Communications Sector Authorization Regulation,” published in the Official Gazette dated May 28, 2009, No. 27241:
- (ççç) Over-The-Top (OTT) Service: Services providing interpersonal electronic communication—voice, text, or video—to subscribers and users with internet access, independent of operators or the provided internet service, via publicly available software.
- (ddd) OTT Service Provider: A natural or legal person offering services falling within the scope of the OTT service definition.
Article 2 – The following fourth paragraph is added to Article 6 of the same Regulation:
- (4) The following OTT services are exempt from authorization:
- a) Services not exceeding the monthly unique access or user threshold to be determined by the Authority.
- b) Services where interpersonal electronic communication is not deemed a primary component, as determined by the Authority.
Article 3 – The following third paragraph is added to Article 19 of the same Regulation:
- (3) Regarding the provision of OTT services:
- a) OTT service providers shall conduct their activities through fully authorized representatives established in Turkey as joint-stock or limited liability companies under the authorization framework set by the Authority. For this purpose, a company established in Turkey by an overseas entity must have all its shares owned by that entity.
- b) OTT service providers exceeding the monthly unique access or user threshold set by the Authority are subject to this Regulation’s notification-based authorization procedure, authorization fees, universal service contribution, and other rights and obligations—including administrative sanctions—as well as provisions on service suspension or termination. This includes consumer protection, competition establishment and maintenance, network and information security, personal data protection, interoperability, reporting sectoral data and security incidents to the Authority, and public order and national security matters, as may be further regulated by the Authority in line with its legal mandates.
- c) For OTT service providers operating domestically or internationally, notifications may be made via email or other communication means using information obtained from their websites, domain names, IP addresses, or similar sources. Notification is deemed served on the fifth day following its issuance.
Article 4 – The following second and third paragraphs are added to Article 25 of the same Regulation:
- (2) Regarding OTT service providers subject to authorization:
- a) Providers operating without authorization, as identified by the Authority within the timelines set by relevant legislation, or those failing to meet obligations despite authorization, may face administrative fines ranging from 1 million to 30 million Turkish Liras. If the fine is unpaid and authorization is not obtained within six months of the Authority’s notification, the provider’s internet traffic bandwidth may be throttled up to 95%. Non-compliance within three months thereafter may result in access bans to the relevant application or website. Bandwidth throttling and access ban decisions are sent to the Union of Access Providers for enforcement by access providers. Such actions are considered gross negligence, subject to administrative sanction regulations.
- (3) The Authority may directly block access to an OTT provider’s application or website, regardless of authorization status, based on national security, public order, public health, or similar public interest grounds.
Article 5 – The following Temporary Article 12 is added to the same Regulation:
- Temporary Article 12 – Transition Provision
- (1) Authorization of OTT service providers via notification to the Authority shall commence after January 1, 2026.
Entry into Force
- Article 6 – This Regulation enters into force on the date of its publication.
Execution
- Article 7 – The provisions of this Regulation shall be executed by the President of the Authority
Key Terms Glossary: Understanding Türkiye’s Draft OTT Regulation
- BTK (Information and Communication Technologies Authority): Türkiye’s regulatory body overseeing telecom and digital services, tasked with enforcing the draft OTT rules.
- Consumer Rights: Legal protections for users, such as compensation for service failures; notably weak in the draft compared to traditional telecom standards.
- Digital Freedom: The right to access and use online services without undue restriction; critics argue the draft’s controls threaten this.
- OTT (Over-The-Top) Services: Internet-based communication platforms (e.g., WhatsApp, Zoom) bypassing traditional telecom networks, now targeted for regulation in Türkiye.
- Social Network Providers: Platforms under Law No. 5651 (e.g., Twitter/X, YouTube) focused on user-generated content, distinct yet overlapping with OTTs.
- Universal Service Contribution: Fees OTTs must pay under the draft to support Türkiye’s telecom infrastructure, aiming to balance competition.
- VPN (Virtual Private Network): Tools bypassing internet restrictions; their 30% usage in Türkiye challenges the draft’s enforcement (Global VPN Usage 2023).
