The publication below may be out of date due to postponements and recent announcements. Please contact your client representative to have further information and for your queries about the recent announcements regarding your legal obligations.
With the Directive on Amendment on the Commercial Communication and Commercial Electronic Messages published in the Official Gazette No. 31227 dated 28.08.2020, Article 2 of the Directive on Commercial Communication and Commercial Electronic Messages ("E-Commercial Directive" or "Directive") has been changed, according to this change the deadline for transferring the received confirmations to the Message Management System ("IYS") has been extended until 1.12.2020. What is IYS? Who are subject to the Law? What should responsible parties do until the deadline?
In this article, we will explain the basic principles of commercial communication to be established with electronic messages within the framework of the current regulations and IYS.
What is Electronic Commercial Message, In Which Situations Do E-Message Legislation Apply?
Electronic commercial messages are regulated under the Electronic Commerce Law ("E-Commerce Law" or "Law"), Directive and relevant legislation.
The Directive covers the commercial communication established by means of electronic communication for the purpose of promoting service provider's goods, services or business, for marketing purposes or for the purpose of doing them on behalf of someone else. However, some transactions subject to private sectoral regulations are exempted from the Directive. These are:
- Subscriber and user messages including the issues such as promotion, marketing if these are exclusively related to goods and services of the operators subject to the Communication Law,
- Messages containing the activities of professional organizations that are public institutions, public benefit society, and tax-exempt foundations regarding their commercial enterprises,
- Student and parent messages of foundation universities and other private schools,
- Public information and educational messages of radio and television broadcasting organizations,
- Public information messages of the state, local administrations, and other public legal entities.
In order to explain the subject better, it will be useful to clarify some terminological definitions:
In accordance with the Directive, commercial electronic messages refer to messages with data, audio and video content that are delivered electronically and sent for commercial purposes by means of telephone, call centers, fax, automatic call machines, smart voice recorder systems, e-mail, short message service.
Electronic communication devices refer to all kinds of devices such as computers, telephones, faxes, automatic dialing machines that enable messages to be sent, received, or stored over the internet and other communication networks. Accordingly, telephones in telemarketing service, automatic search machines in robocall services, devices through which push-notifications can be sent are examples of electronic communication devices.
Commercial communication refers to any kind of communication related to electronic commerce, except for domain names and e-mail addresses, in order to gain profit within the scope of professional or commercial activities.
In this communication, the recipient refers to a consumer, or a natural person or a legal entity acting for professional or other purposes. Service provider refers to a natural person or legal entity engaged in electronic commerce activities. Natural or legal entities who want to establish commercial communication can also perform commercial communication through the electronic media provided by an intermediary service provider.
What is Commercial Electronic Message Confirmation? In Which Cases Should It Be Taken?
In order to market their goods and services, and promote their business, or increase their recognition with content such as celebration & wishes, the service provider must obtain prior confirmation from the recipients for commercial electronic messages, which are sent to the recipients' electronic communication addresses such as e-mail, telephone. This confirmation will remain valid until the recipients exercise their right to refuse.
- However, the Directive includes exceptional cases that do not require confirmation. These are;
- Messages containing the issues such as changes, maintenance, use etc. of the goods and services provided in cases where the recipients give their contact information to communicate with them,
- In relations such as ongoing subscription, membership, partnership and where there is no promotion or definition of any goods or services,
- Messages regarding situations such as collection, debt, reminder, information update, purchase,
- Messages sent within the scope of information obligation imposed on the service provider in relevant legislation,
- In accordance with the legal regulations regarding capital market, messages sent by companies engaged in intermediation activities to inform their customers.
In addition, the Directive brought one more specific exception to the pre-confirmation rule. Prior confirmation is not required for commercial electronic messages sent to recipients who are merchants and tradesmen. However, unlike the above exceptions, in this case, the recipients (merchants and tradesmen) have the right to opt-out in accordance with the Directive, and such messages can no longer be sent recipients who make a declaration of refusal.
How to Get Confirmation?
In accordance with the Directive, confirmation can be obtained in writing or by any electronic communication means. The record of confirmation shall contain the following information of the recipient:
- Affirmative declaration of consent to be sent commercial electronic messages (i.e. "I accept", "I consent", "I approve", "I want"),
- Name and surname,
- Electronic contact address,
- Signature if the confirmation is obtained in a physical environment.
It should be noted that a negative statement or passive action is not deemed as a confirmation. For example, if the checkbox that includes the phrase "I do not want to receive promotional messages" is not checked, it does not mean that the confirmation has been given.
The subject of the confirmation must be in accordance with the content received; therefore, the confirmation is decisive for the content to be sent.
If the approval is received electronically, the information that the confirmation has been received should be sent to the electronic communication address of the recipient within the same day, indicating the possibility of refusal.
Confirmation cannot be received with commercial electronic message itself. On the other hand, subject to special conditions, confirmation can be obtained in contracts such as subscription and membership. The confirmation statements to be received via IYS Module, which will be mentioned below, may be subject to different forms and essential conditions.
What is IYS? Who Should Register to IYS?
The communication confirmations mentioned above must be kept by service providers. If the confirmation is obtained in physical form, it brings difficulties such as archiving, unarchiving when necessary and ensuring security and confidentiality. Besides, it is also necessary to keep a record of the confirmations received in electronic environment and to ensure their privacy and security. Recipients, on the other hand, present their respective confirmation and refusal statements with each service provider separately. IYS is a national database established within the framework of the relevant legislation, where the confirmations and refusal can be managed in terms of both recipients and service providers.
With IYS, service providers will be able to upload the recipient confirmations to the system. Service providers will be able to store the confirmations for messages on different subjects such as telephone, e-mail, SMS; determine the recipients who confirm or use their right to refuse and perform administrative actions on these permissions.
Within IYS, service providers will be able to give approval, view or refuse their confirmations, and complain about unauthorized message submissions through the system.
In addition, there are two types of recipient options in IYS as personal and merchant. Thus, service providers can manage confirmations separately as merchant or personal.
IYS contains different message packages within its services. Accordingly, within the scope of the basic service offered free of charge, the following operations can be performed manually:
- With the tool that allows to add and change confirmation status, new confirmations can be registered, existing confirmations can be removed or existing refusals can be converted into confirmations.
- With the tool that allows the query of confirmations, the confirmation status is displayed by entering the recipient's phone number or e-mail address in the query field.
- With the tool that reports daily, changes in the registration records of the service provider are presented in the form of a report.
- With the tool that covers the brand and dealer management, the service provider inserts its different brands by uploading the trademark registration documents to the system. The recipients can confirm the brands and dealer separately, thus the system confirmations can be managed separately.
The integration module (API) provides the integration of another software to use the functions of the IYS. With this module, service providers can personally integrate with IYS or use the module by receiving services from IYS business partners. Once the service provider is authorized for login in the integration module, it will be able to use the following functions:
- The confirmations obtained for each brand are registered in IYS.
- The confirmation status of registered buyers can be queried for each brand.
- Dealers can be added or deleted and the confirmations of recipients regarding the dealers can be listed.
- Confirmation status can be changed.
- Affirmation of the data registered in IYS can be done through the mutual agreement tool.
IYS module basically ensures that the transactions between the recipients and the service provider are made through IYS. In this module, confirmations can be obtained from the recipients and refusal notifications can be made through the system. The module which is operated by adhering to certain transparency information conditions, confirmations can be obtained through IYS. The burden of proof that the confirmation has been obtained will be removed from the service provider by this module and the records will be kept in IYS.
How Can Be Registered to IYS? What Are The Required Transactions?
In order to log into the system, you must fill in IYS application form, and add the information and documents specified in this form. Once your application is evaluated and approved within the scope of these documents, an account is opened on behalf of you.
The application must be made by persons who have a MERSIS registration and appear authorized in this registration. Registration can be done by the authorized person via e-government or e-signature. In the application:
- Registration documents of the brands that the service provider sends MERSIS numbers and commercial electronic messages (and electronic signed Message Management System Basic Services Usage Agreement),
- The authorized signatory T.R. ID number, mobile phone number, corporate e-mail address are required.
In case of joint representation authorization, at least one official must sign the document signed by the first official. In addition to these information and documents, your approved registered electronic contact address numbers on the basis of brand requested.
The information to be sent to IYS are as follows:
- Contact address: Mobile phone, e-mail communication channel
- Communication channel: Call, message, e-mail
- Confirmation date
- Type of the recipient: Merchant, personal
- Source of consent: Consent form, website, etc.
What Are The Sanctions For Not Complying With E-Message Legislations?
Recipients have the right to complain about being sent unlawful messages. These complaints may be caused by reasons such as unauthorized delivery of messages, unrecognizability of the message sender, not providing the possibility of refuse, offering a different channel than the message for refuse, keeping the rejection dependent on the reason, not informing about the promotion participation and utilization.
In addition, the Ministry of Customs and Trade has the authority to ex officio supervise the activities and transactions carried out by the service provider and intermediary service provider.
Administrative fines stipulated in Article 12 of the Law are applied to those who are found to be illegal as a result of a complaint or ex officio examination, in accordance with Article 17 of the Directive. According to the relevant Article 12:
- Those who violate the obligation to provide information, the obligation of notifying the terms of the contract to the recipient, and the obligation to ensure that the content of commercial electronic messages comply with the consent of the recipient, shall be imposed a fine of one thousand Turkish liras up to five thousand Turkish liras,
- Those who act contrary to the obligations regarding order confirmation and correction, the obligation to clearly identify the person to whom the commercial communication is made, and the obligations regarding the content of commercial electronic messages, shall be imposed a fine of one thousand Turkish liras up to ten thousand Turkish liras,
- Those who act contrary to the obligations regarding the principles regarding discounts and gifts and the recipient's right to refuse commercial electronic messages, shall be imposed a fine of two thousand Turkish liras up to fifteen thousand Turkish liras,
- Those who violate the obligation to share information, documents and assistance against the inspectors assigned by the Ministry, shall be imposed a fine of two thousand Turkish liras up to five thousand Turkish liras,
- In case of not notifying the information requested by the authorities for the monitoring and evaluation of the development of electronic commerce to the system, a fine of five thousand Turkish liras up to twenty thousand Turkish liras shall be imposed.
If you do not register with IYS, the messages sent to the recipients who do not have the confirmations of IYS will be deemed as unauthorized messages and subject to penalties for unauthorized messages.
What Are The Current Deadlines For IYS With The Recent Change?
Service providers are required to upload the confirmations to IYS until 01.12.2020. Recipients will check these approvals until 16.01.2020. If the right to refuse is not used until this date, the approvals transferred to the IYS will be considered valid.
We would like to point out that while the control period of the recipients was 3 months before the change, this period was limited to one and a half months with the change. In our opinion, the approvals given in this case should not leave any room for hesitation as much as possible.
You can contact us for support and further information regarding your IYS registration.
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.