The Regulation on Commercial Communication and Electronic Commercial Messages ("Regulation") entered into effect by being published in Official Gazette numbered 29417 on 15 July 2015. From 1 May 2015, service providers have been obliged to obtain prior consent from recipients in order to send electronic commercial messages which promote and/or market goods, services and enterprise, or increase the sender's recognition. The Regulation outlines details for how this obligation must be executed.
Under the Regulation, "electronic commercial message" is defined as messages including data, audio or video, sent electronically for commercial purposes. These can be sent via phone, call-center, facsimile, dialer machine, smart audio recorder system, e-mail, or SMS. "Service provider" is defined as real or legal person performing electronic commercial activities and "intermediary service provider" is defined as real or legal person providing electronic commercial platform for economic and commercial activities of third parties.
Obtaining prior consent is not necessary for an electronic commercial messages if it:
- Relates to change, use and maintenance of goods and services where the recipient has voluntarily given his/her communication information as part of the application, agreement, subscription etc.
- Relates to collection matters, debt reminders, information update, purchases, delivery and similar actions with respect to an ongoing subscription, membership or partnership.
- Contains information required by legislation to be sent to the recipient.
- Is sent to merchants and craftsman.
- Is an information message sent to customers by a company which conducts intermediary activities in accordance with capital market legislation.
Consent can be obtained in writing or any type of electronic media. Consent must include an affirmative declaration of the recipient's intention to accept receiving electronic commercial messages. The recipient's declaration of intention cannot be selected by default. Rather, the recipient must grant his/her consent via an affirmative action. Intermediary service providers cannot obtain consent on behalf of other parties to promote and market their goods, services, or enterprises.
Messages sent in order to obtain the recipient's consent must not include any promotion content or marketing of goods, services and enterprises.
Recipients can refuse at any time to receive further electronic commercial message, without providing any reason. Service providers must include information about how to opt out from receiving further messages. If a refusal is sent, electronic commercial messages must stop within three working days of that date.
Merchants must indicate their Central Registration System numbers and commercial names in the title or content of the message. However, it is sufficient for craftsman to state their name and ID number.
All electronic commercial message must include at least one of:
- Phone number.
- Fax number.
- SMS number.
- e-mail address.
Intermediary service provider must indicate at least one of the following:
- Trade name.
- Commercial name.
- Enterprise name.
Unless it is easily understood from the message's content, messages must include an expression indicating that the message is publicity, a campaign or information message. Messages must specifically identify discount and gift promotions, or competitions and games organized for the purpose of promotion.
Service providers and/or intermediary service providers must keep records of consent for one year after consent is terminated.
If a breach of the Regulation occurs, recipients can make a complaint within three months of the message's sending date. Service providers or intermediary service providers can receive administrative fines between TRY 1,000 and TRY 15,000. If an electronic message is sent to more than one recipient, the administrative fine can be increased ten times.
The Regulation contains transitional provisions for databases formed prior to 1 May 2015. These databases are permitted to continue, provided recipients gave their communication information voluntarily in the course of transactions related to direct supply of goods and services. Consent is also valid if it was given to an agency, special authorized person, or distributor. However, service providers must indicate in their first message after 15 July 2015 that the recipient is subscribed to a database and indicate the right to unsubscribe.
Transitional provisions also allow intermediary service providers to send message to recipients within three months of 15 July 2015 and in order to obtain consent to send messages on behalf of other parties, provided a general consent to send messages existed and the intermediary service provider sent a message to the recipient before 1 May 2015. The message must state the identity of the party seeking general consent.
Please see this link for the full text of the Regulation (only available in Turkish).
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.