The Communiqué on the Electronic Commerce Information System and Notification Requirement was published in the Official Gazette dated August 11, 2017, and the Communiqué on Trust Seals in Electronic Commerce was published in the Official Gazette dated June 6, 2017, and both regulations came into effect as of their publication dates. These Communiqués bring several innovations to the e-commerce field in Turkey.
Mandatory Registration to the Electronic Commerce Information System ("ETBİS") and Notification Requirements
The Ministry of Customs and Trade has stated that, through the Communiqué on the Electronic Commerce Information System and Notification Requirement, certain issues and problems arising from e-commerce will be resolved, the Communiqué on the Electronic Commerce Information System and Notification Requirement will lead to the fostering and growth of e-commerce in Turkey, and it will make a positive contribution to the Turkish economy. Within this framework, pursuant to the Communiqué on the Electronic Commerce Information System and Notification Requirement, the following service providers are obliged to register with ETBİS before starting their activities:
(i) Service providers who conduct business on their own e-commerce platforms,
(ii) Intermediary service providers, and
(iii) Domestic service providers who do not carry out e-commerce activities in Turkey but enter into agreements or receive orders through an intermediary service provider located abroad.
In order to register with ETBİS, the following information must be provided: (i) central registration system number (MERSİS No.) for real and legal persons engaging in e- commerce (or, alternatively, Turkish I.D. number for artisans, tradesmen, and craftsmen), (ii) tax identification number, and (iii) mobile application and domain name information for the platform on which e-commerce activities are carried out.
Service providers and intermediary service providers that are registered with ETBİS are obliged to report the following information:
- Registered mail address suitable for notification (KEP),
- Type and nature of e-commerce activities,
- Other types of commercial activities carried out apart from e-commerce activities, if any,
- Types of goods and services offered on the e-commerce platform,
- Payment methods provided on the e-commerce platform,
- Whether there are any second-hand goods offered for sale, and their types, if any,
- Information regarding the services received from payment or e-money institutions, as well as shipping and logistics operators,
- Information regarding e-commerce infrastructure service providers,
- Information regarding the countries where the databases are located for the storage of personal data and customer information,
- In case of cross-border e-commerce activities, information relating to the annual volume of such cross-border trade, reported on the basis of each country and payment method, and
- Any other information that may be deemed necessary and requested by the Ministry of Customs and Trade.
In addition to the above-mentioned information, service providers who conduct business on their own e-commerce platforms must report the place of manufacture, warehouse addresses and the domain names of the intermediary service providers with whom they carry out e-commerce activities.
Service providers and intermediary service providers who engage in cross-border e- commerce activities on e-commerce platforms are required to report the annual volume of such trade on a country-by-country basis and according to each payment method every year by the last day of March. Other notification- related obligations must be fulfilled within thirty (30) days of registering with ETBİS. Pursuant to the provisional Article 1 of the Communiqué on the Electronic Commerce Information System and Notification Requirement, service providers and intermediary service providers that were carrying out their activities as of December 1, 2017, were obliged to fulfill the registration and notification requirements within thirty (30) days as of December 1, 2017. Finally, any changes related to matters that carry registration and notification obligations must be reported within thirty (30) days of the change date.
These notifications must be made to ETBİS through the e-government (e-devlet) platform by the authorized representatives of the legal entity.
In case of non-fulfillment of these obligations, pursuant to Article 12 of the Law on E- Commerce, an administrative fine in the amount of TRY 5.000 to 20.000 will be imposed on the legal and real persons responsible for the failure.
"Trust Seal": A New Standard for the Security and Service Quality of E-Commerce Service Providers and Intermediary Service Providers
The Communiqué on Trust Seal in Electronic Commerce concerns intermediary service providers and service providers who carry out certain activities on their own e-commerce platforms that fall within the scope of the Regulation on Service Providers and Intermediary Service Providers in Electronic Commerce and who wish to receive the trust seal. The Communiqué regulates the procedures and principles related to the security and service quality standards of such service providers, the activities and obligations of the trust seal providers, and the issuance, suspension and annulment of the trust seal.
A trust seal is a discretionary option for such service providers rather than a legal obligation. In this context, a service provider that intends to receive such a trust seal is required to meet the technical, legal and organizational standards discussed below, which are set forth under Article 5 of the Communiqué:
- Ensure that each transaction containing personal data and payment information is carried out with extended validation secure socket layer ("EV SSL") on mobile websites and with secure socket layer ("SSL") on mobile applications,
- Procure the services of penetration test firms that are approved by the Turkish Standards Institute ("TSE") at least once in a calendar year and three (3) months before applying to receive the trust seal and take the necessary safety and security measures pursuant to their tests,
- Design processes that are in compliance with the applicable regulations and their secondary legislation and arrangements and with administrative decisions related to products that are banned or conditionally available on e-commerce platforms,
- Take appropriate measures in order to protect children on e-commerce platforms,
- Provide or enable the necessary information related to the status of an order that is subject to e-commerce,
- Provide or enable the information about the identity of the person who will provide the service subject to e-commerce, its scope and its time period,
- Provide a communication channel between customer service representatives and customers and ensure that the requests and complaints received from customers are processed and resolved effectively.
Trust seal applications should be made to the Trust Seal Providers ("TSP"), which are authorized by the Ministry of Customs and Trade. If a service provider or intermediary service provider has more than one e- commerce platform, it should apply separately to receive the trust seal for each e-commerce platform.
Applicants should submit the relevant documents set forth under Article 5 of the Communiqué, provide a written statement attesting that the application complies with the requirements listed above and furnish a receipt showing payment of the application fee to the TSP. The TSP will prepare a report within thirty (30) days from the application date if the applicant meets the conditions set forth under Article 5 of the Communiqué. If the applicant satisfies the conditions according to the TSP's evaluation, the trust seal will be issued to the applicant. If the applicant does not fulfill the conditions, the TSP will grant the applicant an additional thirty (30) days to meet the necessary requirements. This period may be extended once for a period of fifteen (15) days. If the applicant satisfies the necessary conditions by the end of the extension period, the trust seal will be issued. Otherwise, the application will be rejected.
Following the granting of the trust seal, it will be placed on the homepage of the e-commerce platform of the service provider or intermediary service provider. However, if requested, it can be placed on other pages of the e-commerce platform as well.
As per Article 13 of the Communiqué, the Ministry of Customs and Trade is authorized to request any information or documents in order to ensure the security and stability of e-commerce activities, to conduct audits, to take administrative measures, to accept objections related to the trust seal services provided by the TPS, to cancel the authorization of a TPS that fails to fulfill its obligations, to determine a cap on the maximum amount that can be paid as compensation for trust seal services, and to establish the form, standards and criteria of the trust seal.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2018. 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.