Turkey: As A Way Of Protecting Consumers From Unsolicited Communication - "Law On Electronic Commerce"

Last Updated: 19 November 2015
Article by Selen Ibrahimoglu Gures

The main purpose of the Law on Electronic Commerce ("Law") effective as of May 1, 2015 is to define the liabilities of the service providers or intermediaries in terms of electronic commerce and for communicating with their customers.

In this context a major issue from the consumer's point of view is the wish to regulate the receipt of "junk mails/messages". Therefore the new legislation has been highly appreciated by the consumers, as unsolicited commercial communication from service/intermediary service providers had grown to be a major disturbance for them in the last decade.

The Law is mainly based on Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ("Directive 2000/31/EC"). In this context the unsolicited commercial communication could be rejected by consumers by way of opt out registering.

Nevertheless, "Regulation on Electronic Communication and Electronic Commercial Messages" ("Regulation") came into effect on July 15, 2015 regulating unsolicited commercial communication like it is defined in Directive 2002/58/EC of the European Parliament and of the Council of July 12, 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector ("Directive 2002/58/EC"), accepting the opt-in system. This system foresees that prior given consent of the subscriber would need to be obtained for unsolicited commercial communication.

This and some other differences in the mentioned source legislations might have created incoherence in the purpose of the Law and the Regulation and their application vis-à-vis the benefits of the consumers.

When one makes strict interpretation of the mere language of the Law and the Regulation in terms of conditions and procedures of sending of unsolicited messages, it is obvious that some electronic commerce activities might negatively be affected beyond the purpose of protection of consumer rights.

That is why still many discussions are going on between the associations, institutions and Ministry of Customs and Trade to be able to create a unique resolution to the commercial needs of both the service provider/intermediaries and consumers. Some further changes in the Regulation may occur in the following months based on inputs of the public and private institutions and market players.

GETTING THE APPROVAL OF THE CONSUMER TO SEND ELECTRONIC COMMUNICATION- WHO SHALL BE THAT PERSON?

Article 6 of the Law states that, "the commercial electronic messages shall be sent to the receivers only with their prior consent" and it is stated that this consent shall be taken in writing or via all kinds of electronic communication devices. The corresponding article in the Regulation, Article 5, regulates that the approval should be obtained by the service provider who will send commercial electronic message forpromoting, and/or advertising the goods and services. At this point there are ambiguities in terms of the party who will take the approval.

Literal interpretation as stated above would drive that only the party who will send the electronic commercial message should physically receive the approval of the consumer.

Whereas this interpretation might go beyond the protection of the consumer, because consumers may give their approvals to those who at the time of receipt of such consent were not a transaction party to them.

On the other hand, there may be no obstacle for such approvals to be physically received by appointed agents or mandates for the said service provider, as long as the approval explicitly includes the issues and parties to whom such consent is being given.

Yet again can more than one service provider receive the approval of a consumer under one consent to be executed by the consumers is another issue that will need to be clarified.

INTERMEDIARY SERVICE PROVIDERS WITHIN THE CONTEXT OF LAW AND REGULATION

Law and the Regulation defines "intermediary service providers" as "the real person and legal entities who provide the electronic environment to the other parties for their financial and commercial activities".

Determination of who is an "intermediary service provider" in the market is also important in terms of sending the electronic communication and receipt of the approval. Service providers can send messages via intermediary service providers, however, intermediary service providers could not send electronic commercial messages to the receivers on behalf of other parties in order to introduce, promote or advertise the goods and services.

WHAT TO DO WITH THE EXISTING CONSUMER DATABASE UNTIL OCTOBER 15, 2015?

Temporary Article 1 of the Regulation states that the approvals which have been taken before July 15, 2015 and including an explicit consent of the receiver are deemed to be valid approvals to be used in the future as well.

On the other hand, according to the same article before July 15, 2015, if a general approval is taken and electronic commercial messages have been sent upon these approvals on behalf of a third party, that third party on whose behalf the approval had been taken may contact the consumer for once within 3 months as of July 15, 2015 to get its own approval.

Now, the question in the market is what are the limits of an explicit vs general approval and which service providers should be sending such additional consent until October 15, 2015?

The answer to this question again lies on the interpretation of who is authorized or obliged to get the consent to send electronic communications to the consumers.

We are on close watch on the developments of this important issue especially for telemarketing companies in the Turkish market.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions