Information Note On The Constitutional Court Decision Regarding The Liability Of Electronic Commerce Intermediary Service Providers Towards Consumers

In the objection application numbered 2024/187 filed before the Constitutional Court (“CC”), it was alleged, within the scope of a non-pecuniary damages action brought on the grounds that a product purchased through an electronic commerce platform was defective, that the phrase “…and Article 11…” contained in subparagraph (d) of paragraph six of Article 48 of the Consumer Protection Law No. 6502 (“CPL”), as well as paragraph one of Article 9 of the Law No. 6563 on the Regulation of Electronic Commerce (“E-Commerce Law”), were unconstitutional.

Pursuant to the first of the challenged provisions, namely Article 48/6(d) of the CPL, electronic commerce intermediary service providers are not held liable for the exercise of the optional rights relating to defective goods regulated under Article 11 of the CPL, even where they collect the payment on behalf of the seller or provider. The second provision, namely Article 9/1 of the E-Commerce Law, stipulates that, unless otherwise provided under other laws, electronic commerce intermediary service providers shall not be liable for unlawful content provided by the service provider or for the goods or services that are the subject matter of such content.

In the case underlying the objection application, the 3rd Civil Chamber of the Ankara Regional Court of Appeal (“Court”) considered that electronic commerce intermediary service providers have increasingly assumed a more active role in the relationship between consumers and sellers. Nevertheless, the Court concluded that excluding such intermediary service providers from liability regarding the exercise of consumers’ rights arising from defective goods, and generally exempting them from liability arising from unlawful content and the goods or services subject thereto, may not be compatible with the constitutional guarantees relating to consumer protection. Accordingly, the Court filed an objection application, and the matter was brought before the CC for review.

Assessment of the CC

In its review, the CC first stated that the consideration paid by a consumer in return for a defective or unlawful good or service falls within the scope of the right to property protected under Article 35 of the Constitution. According to the CC, the State’s positive obligation to protect the right to property requires not only refraining from interfering with individuals’ property rights, but also establishing effective legal mechanisms to safeguard this right in relations between private persons.

In this context, the CC emphasized that the State’s obligation to protect consumers under Article 172 of the Constitution must be assessed together with the constitutional guarantees relating to the right to property. According to the CC, the legal framework established to protect consumers’ economic interests must be capable of enabling consumers to exercise their rights effectively.

The CC further underlined that, considering the scale reached by electronic commerce activities, it cannot always be assumed that electronic commerce intermediary service providers merely perform a technical and neutral intermediary function. In this regard, the CC noted that, in certain circumstances, intermediary service providers may have knowledge of the goods or services offered for sale, may possess a certain degree of control and supervisory capability over sales processes, and may therefore assume an active role within the sales relationship.

Against this background, the CC assessed that the general and absolute exemption of electronic commerce intermediary service providers from liability in relation to the exercise of consumers’ optional rights arising from defective goods and from unlawful content provided by the service provider, as well as the goods or services that are the subject matter of such content, may prevent consumers from exercising their rights effectively. The Court particularly highlighted that, where the seller ceases its activities, cannot be reached by the consumer, or fails to fulfil its obligations, preventing consumers from also seeking recourse against the intermediary service provider may create a serious gap in consumer protection. According to the CC, such a situation weakens the constitutional safeguards intended to protect the consideration paid by consumers and may leave consumers effectively unprotected.

For these reasons, the CC concluded that the challenged provisions disrupted the fair balance that must be maintained between consumers and electronic commerce intermediary service providers to the detriment of consumers, failed to provide adequate constitutional safeguards for the protection of consumers’ economic interests, and were incompatible with the State’s positive obligations to protect consumers.

Accordingly, the CC ruled for the annulment of the phrase “… and Article 11 …” contained in subparagraph (d) of paragraph six of Article 48 of the CPL, which prevented consumers from exercising their optional rights relating to defective goods against intermediary service providers. The Constitutional Court also held that the liability exemption regime granted to electronic commerce intermediary service providers under paragraph one of Article 9 of the E-Commerce Law was unconstitutional insofar as it applies to consumer contracts.

Nevertheless, the CC did not conclude that electronic commerce intermediary service providers must, in every case or automatically, be held liable. Rather, it found unconstitutional the categorical exclusion of such persons from liability in disputes arising out of consumer transactions.

Entry into Force

Taking into account that the annulment may give rise to a legal vacuum that could adversely affect the public interest, it was decided that the annulment provision shall enter into force nine months after its publication in the Official Gazette dated 02 June 2026.

Dissenting Opinion

The dissenting member stated that electronic commerce intermediary service providers are not, under the current legislation, entirely exempt from liability. The dissenting opinion emphasized that the CPL constitutes a lex specialis with respect to distance contracts and that intermediary service providers are already subject to various obligations, including pre-contractual information duties, the retention of contractual records, liabilities arising from certain promotional sales campaigns, and the refund of payments within the scope of the right of withdrawal. Accordingly, it was argued that the legislature had merely excluded liability concerning the exercise of optional rights relating to defective goods, while consumers had not been left entirely without protection.

The dissenting opinion further noted that it is not practically possible for electronic commerce intermediary service providers to determine in advance whether every product offered for sale is defective or whether every service involves an unlawfulness. It was also argued that imposing liability on intermediary service providers under the provisions relating to defective goods could increase operational costs and potentially have adverse effects on the development of the electronic commerce sector. For these reasons, the dissenting member concluded that the challenged provisions were not contrary to the constitutional guarantees concerning the protection of consumers.

Conclusion

The decision is of particular significance as it may have far-reaching implications for the legal position of electronic commerce intermediary service providers in consumer disputes. In this regard, electronic commerce platforms may need to reassess their consumer complaint handling procedures, seller monitoring practices, product safety controls, and dispute resolution mechanisms. Furthermore, the effectiveness of consumer-facing application and redress mechanisms may require closer evaluation.

In addition, the decision may prompt a reconsideration of contractual arrangements concerning the allocation of risks arising from consumer transactions, as well as the review and strengthening of internal compliance processes. Depending on the legislative and practical developments following the annulment decision, electronic commerce intermediary service providers may be required to adopt more comprehensive measures aimed at consumer protection and risk management.

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