The secondary legislation with regard to the obligations of service providers and intermediary service providers within the scope of the Turkish Electronic Commerce Law has been promulgated. It was published in today's Turkish Official Gazette Nr. 29457 under the name of; "Regulation on Service Providers in Electronic Commerce and Intermediary Service Providers" (the "Regulation"). The Turkish Electronic Commerce Law had defined the service provider as any individual or legal entity performing electronic commerce activity, and the intermediary service provider as any individual and legal entity providing its electronic commerce platform for the performance of economic and commercial activities by others. The same definitions have been used for service providers and intermediary service providers in the Regulation. However, according to Article 6 of the Regulation, the intermediary service provider seems to be more accurately defined. Pursuant to the mentioned provision, an intermediary service provider is an operator of electronic commerce market places, where sale and purchase transactions between the consumer and service provider is realized. Accordingly, obligations of the above mentioned providers are differentiating from each other according to the Regulation.
The Regulation aims to stipulate the terms and conditions with regard to (i) general data that service providers, and intermediary service providers, are obliged to store in the network through which electronic commerce activities are performed, (ii) data mandatory to provide to consumers before entering a contract and during processing an order, and (iii) other applications involving electronic commerce activities. When it is referred to network, it should be understood environments/platforms such as the Internet enabling performance of electronic commercial activities.
The Scope of the Regulation is to determine the obligations of service providers and intermediary service providers with regard to providing information during the sale of goods and services through networks. The Regulation also includes other measures with respect to electronic commerce.
II. Obligations of Service Providers to Provide Information
The obligations of service providers to provide information within an electronic environment are determined under Article 5 of the Regulation. According to this Article, the content of the information to be provided by service providers depends whether they perform electronic commercial activities through their web sites, or through web sites of intermediary service providers. The content of such information also depends whether the service provider is a business man/ tradesman or not.
1. Information to be provided by Service Providers on their Websites
When performing electronic commerce activity through an electronic environment owned by the service provider itself, the following information needs to be provided depending whether the service provider is a business man / tradesman or not. According to the Regulation, service providers have been enabled to store the below mentioned information on their web sites under the "Communication" section.
a. Service providers being a business man or tradesman
Before initiating any electronic commerce activity on their web sites, service providers are obliged to provide the following information in full within the electronic commerce environment owned by them: (i) registered electronic mail address, e-mail address, and phone number along with its company name, if any, or registered trademark; (ii) trade association of which it is a member and sectoral institutions in which it holds a membership, if any, along with trade association rules and information on how anyone can have access to such rules; (iii) if the service provider is a business man, its commercial name, central registry record number (MERSIS) and headquarters address; (iv) if the service provider is a tradesman, its name and surname, tax ID number and headquarters address.
b. Service providers not being a business man or tradesman
Any service provider not being a business man or tradesman has to maintain the following information in full within the electronic commerce environment owned by it: (i) name and surname or title; (ii) headquarters address; (iii) registered electronic mail address; (iv) e-mail address; and (v) phone number.
2. Information to be provided by Service Providers on the Websites of Intermediary Service Providers
Service providers can also perform electronic commerce activities through intermediary service providers in which case the following information needs to be stored by intermediary service providers with regard to such service providers depending whether they are business man / craftsman or not.
a. Service providers being business men or tradesmen
Any service provider being business man or tradesman and performing sales through intermediary service providers, before initiating any electronic commercial activity, has to store in full the following information in the area allocated thereto by the intermediary service provider: (i) at least one of the commercial name, company name or registered trademark; (ii) registered electronic mail address; and (iii) tax ID number for tradesmen or MERSIS number for business men.
b. Service providers who are not business men or tradesmen
Any service provider who are not business men or tradesmen and performing sales through intermediary service providers has to store in full, the following information in the area allocated thereto by the intermediary service provider: (i) name and surname; (ii) city of its residence address; (iii) headquarters address and information that its approved, and a phone number is maintained by the intermediary service provider.
III. Obligations of Intermediary Service Providers
The same obligations apply to intermediary service providers as to service providers with regard to providing information mentioned under Section II of this article. Additionally, service providers are under obligation to provide technical support so information about service providers to which the related intermediary service provider allocates an area on its website are displayed and updated. Moreover, if the service provider uses the related intermediary service provider to perform sales on a web site owned by the related intermediary service provider, the mentioned intermediary service provider is obliged to check whether the service provider has complied with its obligation to provide information under Section II paragraph 2 of this Article. In other words, the Regulation has given the intermediary service provider a further liability to check whether the service provider complies with the Regulation when it uses an electronic environment owned by the intermediary service provider. However, such liability of the intermediary service provider is limited and excludes the supervision of the content supplied by the individual or legal entity using the electronic environment provided by the intermediary service provider. The intermediary service provider is further not obliged to check whether there is any illegal activity or circumstance in relation to the content or goods or services subject to the content.
IV. Guide for Electronic Commerce Activities
Any intermediary service provider and service provider performing sales within the electronic environment owned thereby have to store the following actual information on the web site to which a direct access will be granted through the network, through which electronic commercial activities are performed: (i) technical steps such as choosing goods and services for the establishment of the contract, entering delivery and payment information, and approval of the order etc.; (ii) information on whether the electronic contract will be stored within the electronic environment, whether the consumer will be able to have access to such contract within the related environment, and how long such access shall be granted; (iii) information to be supplied in relation to a summary of the order form on which the consumer can accurately and clearly determine and correct its faults in entering data before an order is made and technical tools to reverse and change the information; (iv) confidentiality rules in relation to personal data obtained through electronic commerce activities; and (v) alternative dispute resolution mechanism in the event of any dispute with the consumer, if any. Showing such mechanism, however, does not prevent the parties from seeking other dispute resolution instruments.
V. Obligations in relation to Orders
The intermediary service provider and service provider performing sales in an electronic environment owned thereby. are obliged to maintain: (i) submit the sale of second hand goods under a separate category; (ii) to clearly display to the consumer the total amount to be paid thereby including tax and delivery expenses and other conditions of the contract before the order made through the electronic environment has been approved and payment terms have been entered; (iii) total amount of goods or services, method of price calculation and additional expenses for delivery if delivery expenses cannot be determined in advance; (iv) summary of the order form on which the consumer can accurately and clearly determine and correct its faults in entering data before the order is approved and appropriate, efficient and easy accessible technical tools to reverse and change the information; and (v) physical or electronic delivery of the contract provisions and general terms and conditions so when it is displayed to the consumer for a second time, they are used and kept by the consumer in print form.
The intermediary service provider and service provider performing sales in an electronic environment have to approve the order through the electronic environment through which the related electronic commerce activity has been made. Additionally the consumer must be informed about the same as soon as possible through tools such as e-mail, SMS, phone or fax. The order and the approval of the order are deemed to be realized by the time when the parties have been able to access to such statements.
The same penalties determined under the Turkish Electronic Commerce Law apply to non-compliance with the Rules of the Regulation. Furthermore, a detailed complaint and monitoring mechanism has been provided under its third section about which detailed information is available upon request.
Any service provider or intermediary service provider who are performing sales within an electronic environment owned thereby, have to adapt their web sites in conformity with the related provisions of the Regulation within three months following the Regulation entered into force, which begins as of 26th of August 2015.
Good luck with another adjustment to your web sites!
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.