Legal Journal

An Overview Of New Electronic Commerce Code

Within the scope of Turkey’s harmonization programme for alignment with EU Acquis, there has been a significant improvement with the approval of the new Code on e-Commerce for uniformity of the rules of e-Commerce which have no geographic limits. The e-Commerce Code (“the Code”) will enter into force on 01.05.2015.

Defining the key actors of E-Commerce Code

There are two definitions in the Code, applicable for the firms which provide electronic commerce services in connection with the changes in the e-Commerce websites.

The “service providers” are defined as “natural or legal entities that operate electronic commerce activities”, in the first draft of the Code. It can be understood that the firms which are involved in activities such as product sales, providing services on their behalf can be considered as service providers.

 However, developing nature of the electronic commerce has expanded the scope of this definition. The initial definition has become insufficient for description of the firms which provide electronic marketplace services between consumers and other companies. Therefore, the definition of “intermediary service provider” is added to the Code. In this respect, an intermediary service provider means “natural or legal entities which provide communication, order, publishing content and notice, payment, promotion, marketing services via electronic communication devices to their users in order them to carry out their electronic commerce activities”

The liabilities conferred upon e-Commerce actors

Even though the Code indicates that implementation of the rules to intermediary service providers will be determined by further regulations, the Code includes general principles with regards to the firms which provide/will be providing e-Commerce services.

The Code has implemented administrative penalties between 1.000 TL to 15.000 TL, in case the below mentioned rules are not followed:

• The obligation to provide information: E-Commerce websites shall indicate their current introductory information and the technical aspects of the contracts which will be conducted with the consumer.
• The method of the order: Conditions of the contract concerning the service and/or product which the e-Commerce website provides, should be clear and accessible to the consumer. The order of the consumer should be immediately confirmed via electronic communication devices by the website.
• The obligation of obtaining a written consent: Consent either in writing or in electronic form should be taken from the consumers in order to send them a commercial electronic message. Further, in order to send messages related to different products/services; an additional consent must be obtained as well.
• Prohibition of spam mailing

In cases where an e-Commerce website sends e-mails without consent to more than one person at one time, such website will be subject to a penalty of ten folds of the applicable administrative punishment.

Changes with regards to consumers

Most of the e-Commerce websites have been using contact information of the users they acquire on different causes; even though the source of this kind of information remains unclear. Until the Code has been issued, the consumers could only stop receiving these messages after receiving them (“opt-out”) Nevertheless, the method of obtaining prior consent (“opt-in”) is adopted for the consumers with the new changes in the Code in accordance with EU legislations.

Thus, consumers have the right to choose whether they will receive the messages from the beginning of the commercial communication or not.

In addition to this regulation, consumers can request from a website to stop sending messages any time with no condition, even though they have given their consent before. In such a case, the related entity should stop sending these messages in three workdays after receiving this request.

Material Points with regards to personal data

Any personal data collected from the consumers can only be used and shared with third parties, only if consent of the consumer is obtained. (For example, in order to be involved with the activities such as; online mailing, online behavioural advertising, etc., consent of the consumer should be obtained).

Service providers and intermediary service providers will be responsible for the security and preserving of the personal data.

In addition to this regulation, liability of the e-Commerce websites with respect to Law No. 5651 on Regulating Broadcasting in the Internet and Fighting Against Crimes Committed through Internet Broadcasting and Turkish Penal Code remain the same in terms of collection, use and processing of personal data.

Av. Derya Doğan