Follow us

NEW LEGISLATION ON THE REGULATION OF ELECTRONIC COMMERCE

The Code on the Regulation of Electronic Commerce numbered 6563, entered in force on 1 May 2015 (in Turkish, “Elektronik Ticaretin Düzenlenmesi Hakkında Kanun”, hereinafter referred to as the “Code”) regulates electronic commerce, commercial communication, liabilities of service providers and intermediary service providers, contracts concluded via electronic media, obligation to give information regarding electronic commerce and the related sanctions applicable in case of violation.

As defined in the Code;

  • E-commerce” is all online financial and commercial activity carried out in an electronic media;
  • Commercial communication” is any communication regarding e-commerce aimed at deriving an income through financial and commercial activity, except for domain names and email addresses;
  • Electronic commercial messages” are all messages containing all data, voice and video contents communicated with commercial purposes through electronic media such as telephone, call centres, fax, automatic call devices, smart voice record systems, e-mail, text messages etc.
  • Service provider” is a natural or legal person that performs an e-commerce activity; and
  • Intermediary service provider” is a natural or legal person that provides an electronic media where others can conduct financial and commercial activities.

Prior Consent by the Recipient

  • Commercial electronic messages shall be communicated to recipients solely upon their prior consent to such communications and in conformity therewith with regard to their content. Such consent may be obtained in written or by any electronic media. If the recipient has disclosed his/her contact information, commercial electronic messages concerning changes, use and maintenance of the goods or services provided to him/her shall not require such consent.
  • Artisans and merchants shall be out of the scope of prior consent obligation.

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 1,000.- and TRY 5,000.-. In case of violation thereof by communication of commercial electronic messages to multiple persons at a time, the said fine shall be imposed up to ten times the abovementioned amount. However, the said prior consent obligation shall not be required with respect to databases established prior to 1 May 2015 regarding commercial communication with the consent of recipients. 

 

Information To Be Provided

  • The commercial communication shall be clearly identifiable as such; and, the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable.
  • Commercial communication shall be made in such a manner that; (i) the information related to the service provider is provided so as to ensure its identification; and, following the communication method, (ii) the accessible details of the service provider such as telephone number, fax number, text messages number and e-mail address, (iii) the subject and the purpose of the message, and, (iv) where at stake, the information related to the person on whose behalf the commercial communication is made are provided.

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 1,000.- and TRY 10,000.-.

Promotions and Refusal of Communication

  • Commercial communication shall be made in such a manner that; (i) promotional offers such as discounts and gifts, promotional competitions or games shall be clearly identifiable as such,

(ii) the conditions for participation shall be easily accessible and (iii) be presented clearly and unambiguously.

  • The service provider shall provide the recipient (i) with the means to delivery of refusal notifications through electronic media and in a manner to be easy and free of charge regarding unsolicited communication; and (ii) with the required information for the said refusal procedure as enclosed in the commercial communication. The recipients may, at any time, refuse to receive such communication without submitting any reason.
  • The service provider shall stop sending commercial communications to the recipient within three days as of reception of the refusal notification.

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 2,000.- and TRY 15,000.-.

Duty to Give Information

The auditors assigned by the Ministry of Customs and Trade (in Turkish “Gümrük ve Ticaret Bakanlığı”, hereinafter referred to as “Ministry”) are entitled to demand and to analyze information, documents and books and to take copies thereof with regard to matters falling into the scope of the competence of the Ministry and to obtain oral and written information from officers. Accordingly, those concerned shall (i) duly present information, document and books, their electronic inscriptions and copies, (ii) fulfil the oral and written information demands, and (iii) provide any aid and assistance.

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 2,000.- and TRY 5,000.-.

Contracts Concluded via Electronic Media

Before concluding a contract via electronic media, the service provider shall provide the recipient with;

  • its current introductory details in a manner to be easily available,
  • information concerning the technical stages for the execution of the contract,
  • information concerning whether or not (i) the contract will be kept by the service provider, (ii) the recipient will have access thereto and (iii) the duration of the said access,
  • information concerning technical tools regarding the duly detection and adjustment of data entry errors,
  • information related to applicable confidentiality provisions and alternative dispute resolution mechanisms,
  • the union to which it is a member, the code of ethics and electronic access methods thereto.

The abovementioned provisions shall not be applied to the contracts concluded solely via e-mail or similar communication means. Besides, in case neither of the parties are consumers, they shall be entitled to agree upon contrarily to the said provisions.

The service provider shall enable the recipients to keep a copy of the contractual provisions and of the standardized terms of contract (in Turkish “genel işlem şartları”).

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 1,000.- and TRY 5,000.-.

Purchase Order

At the order confirmation phase and before the submission of payment information, the service provider shall provide the recipient with the access to the contractual conditions including the total amount to be paid. In case of violation of this provision, service providers and intermediary service providers shall be imposed an administrative fine between TRY 1,000.- and TRY 5,000.-.

The service provider shall confirm the receipt of the purchase order of the recipient via electronic media without delay. The order and the confirmation of its receipt shall be deemed duly made at the point where the parties are able to access to the said statements.

Before the submission of the purchase order, the service provider shall provide the recipient with appropriate, effective and accessible technical tools to enable the latter to determine data entry errors.

If the above obligations are violated, service providers and intermediary service providers shall be imposed an administrative fine between TRY 1,000.- and TRY 10,000.-.

The abovementioned provisions shall not be applied to the contracts concluded solely via e-mail or similar communication means. Besides, in case neither of the parties are consumers, they shall be entitled to agree upon contrarily to the said provisions.

Confidentiality

Service providers and  intermediary service providers  shall  be responsible for maintenance and safety of the personal information obtained as a result of the transactions made within the scope of the Code and shall not be entitled to transfer or use for other purposes the personal information without consent of the concerned person.

On the other hand, pursuant to the amendment made by the Code in the Electronic Communication Code numbered 5809, operators shall not make communications to subscribers and users through electronic media with intent to the marketing of the services that they provide without the prior consent of the latter. However, if the subscribers and users grant their contact information in the course of provision of a good or a service, such communications concerning marketing, publicity, change and maintenance services regarding the same or similar goods or services may be made to the subscribers and users without their prior consent provided that they have been informed of such communication to be made and that they are granted the possibility to refuse them. In any case, subscribers and users shall be granted the right to refuse such communications and to withdraw their prior consent in a manner to be easy and free of charge.

Our Firm remains at your disposal for any further clarifications you may require.

Copyright© Cailliau & Colakel