The Information and Communication Technologies Authority ("ICTA") rendered a board decision numbered 2020/DK-THD/084 ("Decision") regarding instant notifications (such as pop-up, push notification etc.) sent to subscribers' device screens due to the consumer complaints, on March 24, 2020. The Decision sets certain obligations on operators who are willing to offer consumers services which have legal and financial consequences (e.g. tariff change, tariff sale, commitment, consent on processing of personal data, etc.) and where approval and/or consent is obtained from consumers through instant notification screens (such as pop-up, booster, push notifications and etc.) sent via SIM applications, internet websites, mobile applications and similar mediums.

Due to rising complaints from consumers about the instant notifications sent by the operators (like pop-up, push notification etc.) to subscribers' device screens for tariff/campaign change, tariff/package sales, participation in a campaign, commitment, invoice or payment type change for transition to prepaid line, consent to process personal data and such to fulfil financial and legal obligations, ICTA rendered a Decision for protection of consumer rights. ICTA rendered its Decision to prevent such aggrievement on the consumers' part, in accordance with Article 4 (Principles of the electronic communication), Article 6 (ICTA's duties and authorities), Article 12 (Operators rights and obligations), Article 48 (Protection of consumer and end user), Article 49 (Providing transparency and notifying) and Article 51 (Processing of personal data and protection of privacy) of the Law No. 5809 on Electronic Communication, Article 5 (Consumer rights), Article 6 (Transparency and notifying), Article 7 (Establishment and content of subscription agreements) and Article 8 (Application of subscription agreements) of the Consumer Rights Regulation Regarding the Electronic Communication Sector and within the framework of other relevant legislation. However, ICTA stated in the decision that the transactions related to the scope of services which are indicated in ICTA Board's decision of December 21, 2016 numbered 2016/DK-THD/496, on the protection of consumer rights on value added electronic communication services, are excluded from the scope of this Decision.

Prior to this new implementation adopted by the ICTA, in practice some operators were sending instant notifications (such as push notifications) to consumers in return for selling services and this caused consumers to inadvertently click on such push notification for services they are actually not interested in buying and/or subscribing. ICTA, as a reaction to several complaints emerging on the matter, created a progressive solution.

The Decision states that operators -defined as companies that provide electronic communication services and/or electronic communication network and operate its infrastructure within the framework of authorization- requesting consent for processing of personal data and  suggesting a change regarding a tariff/campaign, tariff/package sale, participation in a campaign, committed package purchase, transition to postpaid/prepaid line and similar transactions which require legal and financial consequences are obligated to fulfill the following;

1. In cases where approval and/or consent is obtained through instant notification screens (such as pop-up, booster, push notifications and etc.) sent via SIM applications, internet websites, mobile applications and similar mediums, the approval and/or consent will be valid if the operator fulfills the conditions below;

(a) carrying out the information and other obligations in the notification screen as set out in the legislation in force,

(b)  sending a one-time password which will be confirmed by the subscribers via a text message or through the instant notification screen and

(c) the minimum transaction name and any other information required to be made within the scope of the legislation are included in the text message or on the instant notification screen mentioned in clause (b) of this Article,

2. An option to be presented to the subscriber in each notification screen such as "cancel/no/etc." so the subscriber can exit the relevant notification screen, and

3. After the approval and/or consent, informing the subscriber that the related transaction has been carried out will be sent with an SMS to the subscribers.

Based on ICTA's decision on the matter, operators will not only be required to act in accordance with the relevant legislation and fulfill the obligations indicated therein, but also will have the subscribers confirm a one-time password and allow them an option for rejection of the relevant services.

This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in September 2020. A link to the full Legal Insight Quarterly may be found here

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