The Law on the Regulation of Electronic Commerce numbered 6563 ("E-Commerce Law") was published in the Official Gazette dated 05.11.2014 and numbered 29166 and will enter into force on 01.05.2015. The E-Commerce Law carries importance specifically in Turkey, which occupies the 9th place among the developing markets with highest e-commerce potentials.1 The scope of the E-Commerce Law comprises of commercial communication, the liabilities of the service providers and the intermediary service providers, the agreements concluded by electronic means, the obligation to provide information on electronic commerce and the sanctions.
Ratio Legis of the E-Commerce Law
As indicated in the legislative justification of the E-Commerce Law, the previous legislation was falling short in regulating the terminology introduced by the developments of the information technology such as access, content provider and service provider. The E-Commerce Law is adopted in order to address this problem and hence to fill the relevant gap in our legal system. Moreover, the E-Commerce Law aims to achieve harmonization with the relevant European Union ("EU") legislation, namely the Directive 200/31/EC on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market ("Directive")2.
The Obligations of the Service Provider
Defined in Art. 2/1(ç) of the E-Commerce Law as "real or legal persons engaging in electronic commercial activities...", the service provider is obliged to provide certain information to the recipient before the conclusion of an agreement by electronic means pursuant to Art. 3/1. The relevant information are listed in the article as up-to-date and easily accessible introductory information of the service provider, technical steps necessary for the execution of the agreement, information on whether the executed agreement will be preserved by the service provider and whether it will be accessible by the recipient, the information regarding the technical tools for the determination and correction of the errors in data entry, the privacy rules and information in relation to alternative dispute resolution methods.
In accordance with this provision, the recipient is acquainted with the sales procedure before the agreement is executed and gives his/her decision accordingly. Therefore, the relevant obligation is an obligation which relates to the stage prior to the execution of the agreement. Moreover, Art. 3/3 of the E-Commerce Law stipulates that in case that the parties are not consumers, it is not obligatory to provide information on the trade association and the code of conduct of the service provider to the recipient. However in any case, the seller is under the obligation to enable the recipient to preserve the contractual provisions and general transaction terms. Thus, a unilateral amendment to the contractual terms by the seller is prevented and the review of the agreement by the recipient is enabled.
Regulations Concerning the Order
The Art. 4 entitled "Order" regulates the principles concerning the orders placed through electronic communication tools. The relevant article regulates order placing stage. Accordingly, the first obligation of the service provider is to ensure that the terms and conditions of the agreement, including the cost, is seen by the recipient prior to the entry of the payment information. Following this, the service provider shall send a confirmation through electronic means to the recipient without delay. Moreover, the service provider is obliged to provide necessary technical facilities to the recipient for the correction of the input errors. Pursuant to the legislative justification of the E-Commerce Law, the relevant obligation is an obligation to perform and not an obligation to inform/notify.
Regulations Concerning the Commercial Communication
The commercial communications are regulated under the Art. 6 of the E-Commerce Law. As per the said article, the electronic messages which include direct marketing or advertisement cannot be sent to the recipients through the use of automated calling systems without human intervention, facsimile machines (fax) or electronic mail without the prior written consent of the recipients. It should also be noted that the abovementioned provision is not applicable to consented electronic commercial communication databases established prior to the effective date of the E-Commerce Law.
Two systems are accepted worldwide for the supervision of the unsolicited e-mails. The first system is the "opt-in" system, which is also adopted by the E-Commerce Law. This system requires the prior consent of the recipient as a condition for the service providers to communicate with the recipients by electronic means. Accordingly, the service providers cannot send any fax, e-mail and text messages to the potential recipients without their prior consent. Furthermore, the Art. 7 of the E-Commerce Law stipulate that the content of the communication shall be in compliance with the consent provided.
The second system is called the "opt-out" system and it is a system accepted by the US and Far East countries3. According to this system, the recipient has the right to decline the electronic communication tools which are used. In other words, the service providers do not require the prior consent for the first e-mail; however the recipient may further prevent receipt of other e-mails at any time.
As far as Art. 8 of the E-Commerce Law is concerned, it is observed that the "opt-out" system is not completely rejected by the E-Commerce Law. In accordance with the said provision, the recipients may refuse to receive commercial electronic communications without any cause even though they have provided their consent beforehand. The same provision regulates the obligations of the service provider regarding the easy and accessible notification of refusal of further communication, inclusion of necessary information regarding the refusal notification in the communication and cessation of further communication within three days following the refusal notification. Additionally, the opt-out system is accepted as the principal system for the electronic commercial communication concluded with craftsmen and merchants pursuant to the Art. 6/1 of the E-Commerce Law.
Regulations Regarding the Protection of Personal Data
E-Commerce Law Art. 10 regulate the obligations of the service provider and intermediary service provider concerning the protection of personal data. Accordingly, the service providers and intermediary service providers are responsible for the preservation and protection of the personal information of the recipient, which are obtained due to the transactions concluded within the scope of E-Commerce Law. Moreover, they are not entitled to use such data for any other purposes and to disclose such data to any other third party without the consent of the recipient. This provision aims to harmonize the Turkish legislation with the Directive numbered 2002/58/EC.
The E-Commerce Law aims to define the terms such as service provider, electronic commercial communication and recipient, emerged especially after internet access became widespread and to regulate the relations between these terms in order to bring harmonization with the EU legislation. The law regulates the service provider's obligation to provide information and the content and exceptions of such obligation. In addition to this, the E-Commerce Law regulates the supervision of unsolicited e-mails and requires an approval system for the recipients who are not craftsmen or merchants prior to the sending of the communications, which constitute a problem for the internet users on a daily basis. Regulation of the e-commerce which is expected to develop even further in the future has a vital importance since it ensures the formation and strengthening of trust between the service providers and the recipients.
1 Afra, Sina. Dijital Pazarın Ortak Noktası E-Ticaret: Dünya'da Türkiye'nin Yeri, Mevcut Durum ve Geleceğe Yönelik Adımlar, TÜSİAD Publishing, June 2014, p. 35. http://www.tusiad.org.tr/__rsc/shared/file/eTicaretRaporu-062014.pdf (Date of last access: 20.01.2015)
2 Directive 200/31/EG on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000L0031&from=DE (Date of last access: 20.01.2015).
3 Legislative Justification of Law numbered 6563, p. 7.
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