Turkey: Regulation On Notification Via Electronic Means

Last Updated: 28 February 2013
Article by Alper Uzun

Introduction

The Regulation on Notification via Electronic Means ("Regulation") which regulates procedures and principles of the notifications served via electronic means (to be referred to as "electronic notification") entered into force through publication in the Official Gazette dated January 19, 2013 and numbered 28533.
The Regulation was prepared on the basis of the principles on information security, protection of personal data, service with good quality and international standards.
The Regulation covers electronic notifications served by judicial authorities, some public administrations, administrations with private budgets, regulatory and supervisory institutions, social security institutions and provisional special administrations, municipalities, rural legal entities, bar associations and public notaries through the General Directorate of Turkish Post ("PTT").

Relevant Legislation

As known, Article 7/A, titled "Electronic Notification", was added to Notification Law No. 7021 with Law No. 6099 and electronic notification became legally valid.
The article 7/A of Notification Law No. 7201 reads as follows:
"Electronic notification can be made to the person who wants to be served through an electronic address by providing an electronic address which is suitable for electronic notification.
It is obligatory to make electronic notification to joint stock companies, limited liability companies, and  limited liability partnerships divided into shares.
In the event electronic notification pursuant to the first and second paragraphs cannot be made due to mandatory reasons, notification will be made by other means that are mentioned in this Law.
Electronic notification is deemed to have been made at the end of the fifth day following the arrival of the notification in the electronic address of the addressee."
The justification for the Regulation prepared in accordance with this provision is as follows: In recent years, significant developments in the field of technology and informatics, and innovations as a result of these developments, may be noticed in each phase of life. Laws and secondary legislation, which must be amended accordingly, need to be up to date and meet the requirements, and also be parallel with economic, social and technological developments. In this regard, several technology related regulations have been made in Turkey and the opportunities and facilities provided by information technologies have been put into practice in many areas. Electronic communication is a much faster and cheaper way of communicating than traditional methods.
The aim of these legal provisions is to make notifications cheap, safe and easy within the shortest amount of time.

Electronic Notification

The Regulation stipulates that the authorities who make electronic notification shall obtain their electronic notification addresses only from PTT. Addressees may obtain their electronic notifications from PTT or other service providers.
The notifications shall be forwarded through the servers of PTT. The notifications will be forwarded directly to addressees who obtain their electronic notification addresses from PTT. However, the notifications to the addressees who obtain their electronic notification addresses from service providers other than PTT will be made through the servers of said service providers. Reports of notifications will be issued via PTT servers to the system of the authorities that issued the notification. Thus, all notifications, including electronic notifications made to the authorities, will be made through PTT.
As seen in Notification Law No. 7201, the addressee has to submit an electronic address which is suitable for electronic notification in order to receive electronic notifications.  The Regulation provides the use of Registered Electronic Mail ("KEP"), which provides a safe means of communication, legal validity in electronic media and is suitable for electronic notification for usage of electronic messaging.  The Regulation allows addressees to get an electronic address from a mail service provider that is authorized by the Information and Communications Technologies Authority.
KEP is defined in the Regulation as a "qualified form of electronic mail, which provides legal evidence regarding usage of electronic messages including transfer and delivery". KEP has been used in European Union countries and other countries for a long time. Moreover, an international standard of ETSI TS 102 640 was published by the European Telecommunication Standards Institute ("ETSI") in November 2008 which regulates the interoperability, definition of technical formats, operation process of KEP, and usage of electronic signature and time stamp. KEP, which is defined as a special correspondence infrastructure of electronic communication that uses electronic mail infrastructure and protocols based on ETSI TS 102 640 standard, provides valid and safe transfer and delivery of information and documents, storage and legal evidence in electronic media.  The Regulation of Procedures and Principles Regarding Registered Electronic Mail has been published in the Official Gazette dated 25.08.2011 and numbered 28036. The Information and Communications Technologies Authority, which has the authority to audit pursuant to the Regulation and Law on Electronic Communication No. 5809, is also authorized to audit all of the providers of electronic notification services.

Practice and Conclusion

As mentioned above, it is mandatory to make notifications via electronic means to the joint stock companies, limited liability companies, and limited liability partnerships divided into shares. Real persons and legal entities may benefit from electronic notification at their own discretion. Addressees, who are obliged to receive electronic notifications, must submit electronic notification addresses to the authorities which are entitled to issue notifications. In the event notification cannot be made via electronic means to the addressees who are obliged to receive notifications accordingly, notification will be made by other means as mentioned in the Law.
The authority that issues the notification will transfer the electronic notification message to PTT with its electronic notification address granted by PTT. PTT relays this message with a time stamp and transfers the message to the electronic address of addressee or addressee's service provider if the addressee obtains the electronic notification address from a service provider other than PTT. The service provider who receives the electronic notification message then relays this message with a time stamp and transfers the message to the electronic notification address of addressee.
According to Article 9 of the Regulation, electronic notification is deemed to have been made at the end of the fifth day following the arrival of the notification in the electronic address of the addressee.
Electronic notification aims to meet international standards and overcome the problems regarding notification, information security and protection of personal data, while promoting good quality services

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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