Subject 06 – E-Commerce Law

Subject 06 – E-Commerce Law

  • Introduction

The main legislation relevant to e-commerce in Turkey is as follows:

According to Article 2/1-a of the Law under the “definitions” heading, “Electronic commerce” refers to “any type of economic and commercial activity conducted online in the electronic environment without being physically present.”

  • Definitions in the Law

Electronic commerce: Any online economic and commercial activity conducted in an electronic environment without physical presence.

Commercial communication: Any form of communication related to electronic commerce that aims to generate profit within the scope of professional or commercial activities, excluding domain names and email addresses.

Commercial electronic message: Data, voice, and image-based messages sent electronically for commercial purposes using means such as phones, call centers, faxes, automatic calling machines, smart voice recording systems, electronic mail, and short message service.

Service provider: Natural or legal persons engaged in electronic commerce activities.

Intermediary service provider: Natural and legal persons that provide the electronic commerce environment for conducting the economic and commercial activities of others.

Ministry: It refers to the Ministry of Trade

Electronic commerce intermediary service provider: The intermediary service provider facilitating the conclusion of contracts or placing orders for the provision of goods or services by electronic commerce service providers in the electronic commerce marketplace.

Electronic commerce service provider: The service provider that concludes contracts or receives orders for the provision of goods or services in the electronic commerce marketplace or within its electronic commerce environment.

Electronic commerce environment: Platforms where electronic commerce activities take place, such as websites, mobile websites, or mobile applications.

Electronic commerce marketplace: The electronic commerce environment where the electronic commerce intermediary service provider provides intermediary services for the goods or services of electronic commerce service providers.

Electronic Commerce Information System (ETBIS): The information system established by the Ministry to register electronic commerce service providers and electronic commerce intermediary service providers, collect electronic commerce data, and generate statistical information, enabling registration and notification under this Law.

Net transaction volume: The total value of the final invoice or equivalent document to be prepared for a certain period for the contracts and orders made through electronic commerce intermediary service providers, excluding cancellations and returns, for electronic commerce marketplace services provided by electronic commerce intermediary service providers and for electronic commerce service providers who do not have the characteristics of an electronic commerce marketplace.

Economic integrity: It refers to a person having at least twenty-five percent of the shares or the majority of the voting rights or the right to elect the majority of the decision-making members in the management body, either directly or indirectly, of a commercial company. Also, if they have the right to form a majority with their own voting rights, whether alone or together with other shareholders, whether by virtue of an agreement or not, or if they control a commercial company by virtue of an agreement, or if they have a relationship between multiple commercial companies managed by the same person or persons, regardless of whether or not they are shareholders.

  • Obligation to Inform

Service providers are required to have the following information before concluding a contract using electronic communication tools, as stated in Article 3 of the Law:

(1)The service provider, before the conclusion of a contract through electronic communication tools;

  1. a) Introductory information that can be easily and currently reached by the buyer,
  2. b) Information about the technical steps to be followed for the conclusion of the contract,
  3. c) Information about whether the contract text will be stored by the service provider after the conclusion of the contract, whether the buyer will be able to access this contract later, and how long this access will be provided, and information on technical means for identifying and correcting data entry errors,

ç)Information on technical tools for identifying and correcting errors in data entry in a clear and understandable manner.

  1. d) Privacy policies applied and information on alternative dispute resolution mechanisms, if any.

(2) Service providers specify the professional ethics rules they are members of, if any, and how they can be accessed electronically.

(3) In cases where the parties are not consumers, the parties may agree otherwise for the arrangements in the first and second paragraphs.

(4) The provisions of the first and second paragraphs do not apply to contracts concluded solely by electronic mail or similar individual communication tools.

5) The first and second paragraphs shall not apply exclusively to contracts made through electronic mail or similar individual communication tools.

The misdemeanour for non-compliance with the information obligation stated in Article 3 of the Law is specified in Article 12 of the Law. Service providers and intermediary service providers who act in violation of the obligations in the third article of the Law are subject to administrative fines ranging from one thousand Turkish liras to five thousand Turkish liras.

  • Order-Related Rules

Article 4 of the Law regulates the rules related to orders placed through electronic communication tools:

(1) The following principles apply to orders made via electronic communication tools:

  1. a) The service provider ensures that the terms of the contract are clearly visible to the buyer before the order is confirmed, including the total price to be paid, including the total price to be paid, before the payment details are entered.
  2. b) The service provider immediately confirms to the buyer that the order has been received before the payment details are entered.
  3. c) The order and confirmation of receipt are considered to have taken place as soon as the parties have access to the statements in question.

(2) The service provider offers appropriate, effective, and accessible technical tools for the buyer to identify and correct data entry errors before placing an order.

(3) In cases where the parties are not consumers, the parties may agree otherwise for the arrangements in the first and second paragraphs.

(4) The provisions of the first paragraph (a) and (b) and the second paragraph do not apply to contracts concluded solely by electronic mail or similar individual communication tools.

The misdemeanour for non-compliance with the obligations related to orders in Article 4 of the Law is determined in Article 12 of the Law. Accordingly:

  • Service providers and intermediary service providers who act in violation of the obligations in the first paragraph of Article 4, subparagraph (a) shall be subject to administrative fines ranging from one thousand Turkish liras to five thousand Turkish liras.
  • Service providers and intermediary service providers who act in violation of the obligations in the first paragraph of Article 4, subparagraph (b), or in the second paragraph of the same article, shall be subject to administrative fines ranging from one thousand Turkish liras to ten thousand Turkish liras.
  • Hukuka Aykırı İçerik

According to Article 9 of the Law (As Amended with the Title: 1/7/2022-7416/3) and unless otherwise provided by other laws:

(1) Unless otherwise stipulated in other laws, the intermediary service provider shall not be responsible for illegal aspects related to the content provided by the service provider and the goods or services subject to the content.

(2) If the electronic commerce intermediary service provider becomes aware that the content provided by the electronic commerce service provider is illegal, it shall promptly remove this content from publication and notify the relevant public institutions and organizations of the illegal aspects.

(3) Upon the complaint based on information and documents regarding the infringement of intellectual and industrial property rights, the electronic commerce intermediary service provider shall remove the product subject to the complaint from publication and notify the situation to the complainant and the right holder. Upon the objection based on information and documents contradicting the complaint, the electronic commerce intermediary service provider republishes the product subject to the complaint. The complaint and objection shall include the explicit identity and address information of the parties, information about the product in dispute, justifications regarding the necessity of removing or publishing the product, and other issues determined by the regulation. The right to apply to judicial and administrative authorities in accordance with general provisions is reserved for the parties.

The misdemeanours for non-compliance with Article 9, which regulates unlawful content, are specified in Article 12 of the Law. Accordingly, an administrative fine ranging from ten thousand Turkish Liras to one hundred thousand Turkish Liras shall be imposed on electronic commerce intermediary service providers who act in violation of the second and third paragraphs of Article 9 of the Law, for each violation.

  • Unfair Commercial Practices in Electronic Commerce

Additional Article 1, which was added to the law with an amendment on 1/7/2022 and came into effect on 1/1/2023, includes the following regulations regarding unfair commercial practices:

(1) Unfair commercial practices are prohibited in electronic commerce. Practices by the electronic commerce intermediary service provider that significantly disrupt the commercial activities of the electronic commerce service provider for whom they provide intermediary services, reduce their ability to make informed decisions, or compel them to be a party to a commercial relationship under normal circumstances that they would not enter into are considered unfair.

(2) The following practices are deemed unfair commercial practices in all cases:

  1. a) Failure to make the payment due to the electronic commerce service provider for the sale of goods or services within five working days from the date when the sale price falls under the control of the electronic commerce intermediary service provider and the order reaches the buyer.
  2. b) Pressuring the electronic commerce service provider into selling promotional goods or services, including making unilateral changes to the sale price by the electronic commerce intermediary service provider.
  3. c) Failure to determine the conditions of the commercial relationship with the electronic commerce service provider in writing or electronically through an intermediary contract, or failing to ensure that this contract is clear, understandable, and easily accessible by the electronic commerce service provider.

ç) Making retroactive or unilateral changes to the terms of the intermediary contract that would be to the detriment of the electronic commerce service provider or including any provision in the intermediary contract that allows for such changes.

  1. d) Charging a fee from the electronic commerce service provider when no service has been provided, or the type of service and the amount or rate of the service fee have not been specified in the intermediary contract.
  2. e) Lowering the ranking or recommendation system of the electronic commerce service provider, restricting, suspending, or terminating the service provided to the electronic commerce service provider, on the grounds of no objective criteria being included in the intermediary contract or due to an application to public institutions or judicial authorities.

(3) In the application of subparagraph (a) of the second paragraph, payments made to the payment service provider with which the electronic commerce intermediary service provider is in an economic unity are considered to have been made to the electronic commerce intermediary service provider.

Misdemeanours for violations of the actions prohibited in this article are specified in Article 12/1-c of the Law. Accordingly; Administrative fines ranging from ten thousand Turkish liras to one hundred thousand Turkish liras shall be imposed on electronic commerce service providers who act in violation of the second and third paragraphs of Article 9 for each violation.

  • Obligations of Electronic Commerce Intermediary Service Providers

In accordance with Additional Article 2, which was added to the law on 1/7/2022 and entered into force on 1/1/2023, new obligations have been introduced for electronic commerce intermediary service providers. These obligations can be summarized by categorizing them as follows:

  • General Restrictions

According to Additional Article 2/1,

  1. a) They cannot offer for sale or mediate the sale of goods bearing their own brand or the brand usage right of persons within their economic entity on electronic commerce marketplaces where they provide intermediary services. If these goods are offered for sale on different electronic commerce platforms, they cannot provide access between these platforms and promote one another. This provision does not apply to goods bearing the brand or brand usage right of individuals who generate more than half of their total sales revenue from non-electronic commerce sales. (In accordance with Provisional Article 2, electronic commerce intermediary service providers shall comply with this provision until January 1, 2024)
  2. b) It allows the inclusion of information from the documents that the electronic commerce service provider should prepare under the Tax Procedure Law in the electronic commerce marketplace where the sale is made.
  3. c) Without obtaining prior written or electronic consent from the electronic commerce intermediary service provider or electronic commerce service provider, they cannot engage in online search engine marketing and promotion activities using their registered domain names, which constitute the main element of the registered trademarks.

ç)The electronic commerce intermediary service provider verifies the identifying information of the electronic commerce service provider through documents obtained from them or via the accessible electronic systems of relevant institutions.

  • Obligations Imposed on Electronic Commerce Intermediary Service Providers with a Net Transaction Volume of 10 Billion TRY or More:

With the second paragraph of Additional Article 2, an electronic commerce intermediary service provider with a net transaction volume exceeding 10 billion Turkish Liras within a calendar year is obligated to comply with the following issues in addition to the obligations specified in the first paragraph:

  1. a) They can only use the data obtained from the electronic commerce service provider and the buyer for the purpose of providing intermediary services and cannot use them when competing with electronic commerce service providers in electronic commerce marketplaces or other electronic commerce environments.
  2. b) It provides technical means to carry the data obtained from the sales of the electronic commerce service provider and the processed data obtained from these data free of charge and efficiently. (It will enter into force on 1/1/2024.)
  3. c) Except for electronic commerce environments included in the net transaction volume, it cannot provide access between its electronic commerce environments and cannot promote each other in these environments.

ç) Except for shares registered on the stock exchange in accordance with Article 13 of Law No. 6362, it notifies the Ministry within one month from the date on which the share transfer or acquisition, which enables the attainment of shareholders’ stakes reaching five percent and multiples thereof, is registered in the share ledger.

  1. d) In the event of establishing a company, acquiring the shares of an established company, or transferring these shares, it notifies the Ministry of these transactions within one month from the date of registration in the trade registry in the case of establishment and from the date of registration in the share ledger in the case of transfer.
  2. e) It submits to the Ministry, in accordance with the principles and procedures determined by the Ministry, the audit report showing its compliance with the obligations specified in the first and second paragraphs, as well as its economic situation, its shareholders, and their share percentages within the economic entity, in line with the authorization granted by the Capital Markets Board in accordance with Law No. 6362.
  3. f) It submits to the Ministry, in accordance with the principles and procedures determined by the Ministry, a report on the determination of non-compliance with the legislation related to the content provided by the electronic commerce service provider and the detected non-compliances.
  • Obligations Imposed on Electronic Commerce Intermediary Service Providers with a Net Transaction Volume of 30 Billion TRY and a Transaction Count Exceeding 100,000

In accordance with the third paragraph of Additional Article 2, an electronic commerce intermediary service provider with a net transaction volume exceeding thirty billion Turkish Liras in a calendar year and a transaction count exceeding one hundred thousand, excluding cancellations and returns, is obliged to comply with the following in addition to the general obligations:

(3) An electronic commerce intermediary service provider with a net transaction volume of over thirty billion Turkish Liras and a transaction count exceeding one hundred thousand in a calendar year is obligated to comply with the following provisions in addition to the obligations specified in the first and second paragraphs

  1. a) For the amount that is the application of the Consumer Price Index change rate for the average amount for twelve months of the same calendar year for the thirty billion Turkish Lira and above part of the net transaction volume, it can make advertising expenses up to two percent of this amount, and for the below part of thirty billion Turkish Lira, it can make advertising expenses up to three per thousand of this amount in the following calendar year. The amount calculated accordingly constitutes the total advertising budget that can be allocated among the electronic commerce intermediary service providers included in the net transaction volume and the economic entities within which they operate in the electronic commerce marketplace. This budget is shared among electronic commerce intermediary service providers and electronic commerce service providers in proportion to their contributions to the net transaction volume, and can be used in quarterly periods of a calendar year at most.
  2. b) For the thirty billion Turkish Lira and above part of the net transaction volume, for the amount that is the application of the Consumer Price Index change rate for the twelve-month average of the same calendar year, it can offer promotions, rewards, points, coupons, gift vouchers, and similar opportunities up to two percent of this amount in the following calendar year. The amount calculated accordingly constitutes the total discount budget that can be allocated among the buyers and electronic commerce service providers in the electronic commerce marketplace by the electronic commerce intermediary service provider and the economic entities they are affiliated with. The costs incurred on behalf of the buyer and the economic benefits provided to them are evaluated within this scope. The Ministry is authorized to determine the upper limit of use by sectors and categories as calculated in this article.
  3. c) It cannot restrict the trade relationships of the electronic commerce service provider by preventing them from providing goods or services at the same or different prices from alternative channels, or by making advertisements, and it cannot force them to obtain goods or services from any person. It cannot include a provision enabling such practices in the intermediary agreement.
  • Obligations Imposed on Electronic Commerce Intermediary Service Providers with a Net Transaction Volume of 60 Billion Turkish Liras and a Transaction Count Exceeding 100,000 in a Calendar Year

In accordance with the fourth paragraph of Additional Article 2, electronic commerce intermediary service providers with a net transaction volume of sixty billion Turkish Liras and a transaction count exceeding one hundred thousand in a calendar year are required to comply with the following provisions in addition to the general obligations:

(4) Electronic commerce intermediary service providers with a net transaction volume of sixty billion Turkish Liras and a transaction count exceeding one hundred thousand in a calendar year are required to comply with the following provisions in addition to the general obligations specified in the first, second, and third paragraphs:

  1. a) In electronic commerce marketplaces where they provide intermediary services, they cannot facilitate the provision of any kind of services offered by the banks they are economically affiliated with or companies within the scope of Law No. 6361, excluding credit card payments under Law No. 5464 on Bank Cards and Credit Cards as of 2/23/2006 and other payment transactions, except for credit payment transactions made with credit cards covered by the said Law. (In accordance with Provisional Article 2, electronic commerce intermediary service providers shall comply with this provision until January 1, 2024)
  2. b) In electronic commerce marketplaces where they provide intermediary services:(In accordance with Provisional Article 2, electronic commerce intermediary service providers shall comply with this provision until January 1, 2024)

(1) They cannot engage in activities related to the acceptance of electronic money issued by electronic money institutions within the scope of Law No. 6493, in which they are economically affiliated.

(2) They cannot provide or facilitate the provision of services related to instruments excluded from the scope of Law No. 6493, as per the second paragraph of Article 12 and the fifth paragraph of Article 18 of Law No. 6493.

  1. c) In electronic commerce marketplaces where they provide intermediary services, they cannot engage in cargo transportation under Law No. 4925 on Road Transport as of 10/7/2003, transportation organization services under the Decree-Law No. 655 on Some Regulations Regarding Transportation and Infrastructure Areas as of 9/26/2011, and postal service provision activities under Law No. 6475 on Postal Services, except for their sales as electronic commerce service providers, other than their electronic commerce and non-electronic commerce sales. (In accordance with Provisional Article 2, electronic commerce intermediary service providers shall comply with this provision until January 1, 2024)

ç) If electronic announcements of goods or services are made available in an electronic environment, they cannot facilitate the conclusion of contracts or the placement of orders for the supply of goods or services within the same environment. If these services are provided in different electronic environments by themselves or by individuals who are economically affiliated with them, they cannot provide access between these environments or promote each other.

  • Other Provisions

Other provisions of Additional Article 2 are as follows:

(5) The provisions of the first paragraph (a) regarding periodicals such as magazines and newspapers, books, and electronic book readers do not apply.

(6) In the implementation of the provisions in the second paragraph (a) and (c), individuals who are economically affiliated with the electronic commerce intermediary service provider are also considered. The provisions of the fourth paragraph (a) and (b) also apply to electronic commerce service providers who are affiliated with the electronic commerce intermediary service provider and operate in electronic commerce marketplaces, provided that the net transaction volume includes electronic commerce intermediary service providers.

(7) Foreign transactions are not taken into account in the calculation of net transaction volume, transaction count, and total sales revenue, and in the use of the amounts calculated according to the provisions of the third paragraph (a) and (b).

(8) The second, third, and fourth paragraphs shall apply to electronic commerce intermediary service providers who exceed the limits from the year following the year in which the limits are exceeded, starting from the beginning of the calendar year. The other obligations specified in these paragraphs are complied with within the first three months of the year following the year in which the limits are exceeded. Overruns below five percent are not taken into account in determining whether the limit mentioned in the fourth paragraph is exceeded. Electronic commerce intermediary service providers who fall below the limits in any calendar year will not be subject to the second, third, and fourth paragraphs as long as this situation continues.

(9) In the case of electronic commerce intermediary service providers who have net transaction volumes and transaction counts of four times the thresholds stated in the first sentence of the fourth paragraph and who are economically affiliated, the fourth paragraph (c) applies to each of these electronic commerce intermediary service providers.

(10) The monetary thresholds specified in this article are increased based on the annual change rate of the electronic commerce volume calculated using ETBIS data. The calculation of the thresholds, which shall be applied to the net transaction volume for the calendar year before the date of the increase and the annual change rate of the electronic commerce volume, is announced on the Ministry’s website no later than in February.

(11) This article shall not apply exclusively to electronic commerce marketplaces where products bearing the brand of the electronic commerce intermediary service provider are offered for sale under contracts such as dealerships and agencies.

(12) An electronic commerce intermediary service provider with a net transaction volume of thirty billion Turkish Liras and a transaction count, excluding cancellations and returns, exceeding one hundred thousand in a calendar year, or an electronic commerce service provider with a net transaction volume of thirty billion Turkish Liras and a transaction count, excluding cancellations and returns, exceeding ten million in a calendar year, as part of the economic integrity, whose net transaction volume is included in the net transaction volume of the electronic commerce intermediary service provider, and those part of the economic integrity that provides an electronic environment for the publication of advertisements and other content related to goods or services cannot have advertising and discount budgets for each of the calculated advertising and discount budgets under the third paragraph (a) and (b) in excess of twenty percent.

  • Time of Implementation of the Provisions

In accordance with Additional Article 2/8, the second, third, and fourth paragraphs regarding electronic commerce intermediary service providers exceeding the specified thresholds are applied from the beginning of the calendar year following the year in which the thresholds are exceeded. Compliance with the other obligations mentioned in these paragraphs is ensured within the first three months of the calendar year following the year in which the thresholds are exceeded. Minor threshold violations, below five percent, are not taken into account in determining whether the threshold in the fourth paragraph has been exceeded. Electronic commerce intermediary service providers that remain below the thresholds in any calendar year are exempt from the application of the second, third, and fourth paragraphs as long as this situation persists.

  • Obligations of Electronic Commerce Service Providers

Additional Article 3, which was added to the law on July 1, 2022, and entered into force on January 1, 2023, imposes new obligations on electronic commerce service providers. These obligations are as follows:

(1) Without obtaining a written or electronic declaration of consent, electronic commerce service providers are prohibited from using their registered domain name, which constitutes the main element of their domain, with a registered trademark, to engage in online marketing and promotional activities in online search engines for individuals who are not within their economic integrity.

(2) Except for the provisions in the second paragraph of Article 2 (c), (ç), (d), and (e), as well as the fourth and seventh paragraphs of Article 4, the remaining provisions are comparably applied to electronic commerce service providers with a net transaction volume exceeding ten billion Turkish Liras and a transaction count exceeding ten million in a calendar year. In calculating the license fee regulated in Article 4, sales made by the electronic commerce service provider to foreign countries through their own electronic commerce platforms are not included.

(3) In addition to the obligations specified in the second paragraph for electronic commerce service providers with a net transaction volume of thirty billion Turkish Liras and a transaction count exceeding ten million in a calendar year, the provisions in the third paragraph of Article 2 (a) and (b) are comparably applied.

(4) In addition to the obligations specified in the second and third paragraphs for electronic commerce service providers with a net transaction volume of sixty billion Turkish Liras and a transaction count exceeding ten million in a calendar year, the provisions in the fourth paragraph of Article 2 (a), (b), and (ç) are comparably applied.

(5) The seventh and eighth paragraphs of Additional Article 2 are comparably applied to electronic commerce service providers within the scope of this article.

(6) The thresholds in the second, third, fourth, and seventh paragraphs are subject to the provisions of the tenth paragraph of Additional Article 2.

(7) Electronic commerce intermediary service providers or electronic commerce service providers with a net transaction volume exceeding thirty billion Turkish Liras and a transaction count exceeding one hundred thousand in a calendar year, or with a net transaction volume exceeding thirty billion Turkish Liras and a transaction count exceeding ten million, whose activities are outside the thresholds specified in the third paragraph and who are within the economic integrity of the intermediary service provider but not included in the net transaction volume of the intermediary service provider, cannot exceed twenty percent of the advertising and discount budgets calculated in accordance with the third paragraph of Additional Article 2 (a) and (b) for each of these electronic commerce service providers.

(8) This article does not apply to electronic commerce service providers who generate more than half of their total sales revenue from non-electronic commerce sales.

  • The Obligation to Obtain an Electronic Commerce License

With the addition of Additional Article 4 to the Law on July 1, 2022, and coming into force on January 1, 2023, new obligations have been introduced for electronic commerce intermediary service providers regarding the requirement for a license.

(1) An electronic commerce intermediary service provider with a net transaction volume exceeding ten billion Turkish Liras and a transaction count exceeding one hundred thousand in a calendar year must obtain a license from the Ministry and renew the license in order to continue its activities. License applications are made within the month of March of each calendar year for license renewal, as long as the thresholds are exceeded; whereas for license acquisition, it is made in the calendar year following the date when the thresholds are exceeded.

(2) If a document proving the payment of the license fee is submitted during the application for obtaining or renewing the license, the license is granted or renewed without requiring any other conditions.

(3) For an electronic commerce intermediary service provider with a net transaction volume in one calendar year:

  1. a) Between ten billion Turkish Liras and twenty billion Turkish Liras, the amount exceeding ten billion Turkish Liras is subject to a fee of 0.03%,
  2. b) Between twenty billion Turkish Liras and thirty billion Turkish Liras, in addition to the fee calculated according to (a), the amount exceeding twenty billion Turkish Liras is subject to a fee of 0.005,
  3. c) Between thirty billion Turkish Liras and forty billion Turkish Liras, in addition to the fees calculated according to (a) and (b), the amount exceeding thirty billion Turkish Liras is subject to a fee of 1%,
  4. d) Between forty billion Turkish Liras and fifty billion Turkish Liras, in addition to the fees calculated according to (a), (b), and (c), the amount exceeding forty billion Turkish Liras is subject to a fee of 5%,
  5. e) Between fifty billion Turkish Liras and fifty-five billion Turkish Liras, in addition to the fees calculated according to (a), (b), (c), (d), the amount exceeding fifty billion Turkish Liras is subject to a fee of 10%,
  6. f) Between fifty-five billion Turkish Liras and sixty billion Turkish Liras, in addition to the fees calculated according to (a), (b), (c), (d), (e), the amount exceeding fifty-five billion Turkish Liras is subject to a fee of 25%.

(4) In determining whether the thresholds in this article have been exceeded, the net transaction volumes and transaction counts of electronic commerce intermediary service providers within the economic integrity are taken into account. If the total of net transaction volumes and transaction counts exceeds the thresholds specified in the first paragraph, each of these electronic commerce intermediary service providers applies for a license acquisition and renewal. The license fee is collected from electronic commerce intermediary service providers based on their net transaction volumes realized in the previous calendar year on their electronic commerce platforms.

(5) The license fee is collected in advance by the Ministry. The collected amounts are recorded as general revenue.

(6) The monetary thresholds specified in this article are increased annually in accordance with the annual change rate of the electronic commerce volume calculated using ETBIS data. The thresholds to be applied to the net transaction volume for the previous calendar year before the date of the increase and the annual change rate of the electronic commerce volume are announced on the Ministry’s website no later than in February. . (It will enter into force on 1/1/2024.)

(7) In the calculation of the license fee, sales made by the electronic commerce intermediary service provider and the electronic commerce intermediary service provider within the economic integrity to foreign countries through electronic commerce marketplaces are not included.

(8) The issuance and renewal of licenses, the payment of license fees, and the determination of the annual change rate of electronic commerce volume, as well as the procedures and principles related to the implementation of this article, are regulated by the regulation issued in accordance with the provisions of this Law.

(9) This article does not apply to electronic commerce marketplaces where products bearing the brand of the electronic commerce intermediary service provider are offered for sale within the scope of agreements such as dealership and agency.

Pursuant to the 3rd paragraph of Temporary Article 2 of the Law, (3) Electronic commerce service providers must fulfill the obligation to obtain a license as specified in Additional Article 3, and electronic commerce intermediary service providers must fulfill the obligation to obtain a license as specified in Additional Article 4, as of January 1, 2025.

  • Commercial Electronic Message

According to Article 2 of the Commercial Electronic Message Law under the section “Definitions,” a commercial electronic message is defined as “data, sound, and visual content sent for commercial purposes via electronic media using means such as telephones, call centers, faxes, automatic calling machines, smart voice recording systems, electronic mail, and short message services.”

The sending of commercial electronic messages is regulated not only by the Law but also by the Regulation on Commercial Communication and Commercial Electronic Messages .

  • Conditions for Sending Commercial Electronic Messages (Consent)

According to Article 6 of the Law, commercial electronic messages can only be sent to recipients with their prior consent. This consent can be obtained in writing, through all forms of electronic communication tools, or via the Commercial Electronic Message Management System (IYS). If the recipient provides their contact information to be contacted, additional consent is not required for commercial electronic messages related to changes, usage, and maintenance of the acquired goods or services. Merchants and tradesmen can receive commercial electronic messages without prior consent.

  • Exemptions from Requiring Consent

Situations exempt from requiring consent are specified in Article 6 of the Regulation:

  • Additional consent is not required for commercial electronic messages related to changes, usage, and maintenance of the acquired goods or services when the recipient provides their contact information to be contacted.
  • Prior consent is not required for ongoing subscriptions, memberships, or partnerships, and for notifications related to collection, debt reminders, information updates, purchases and deliveries, or similar cases as required by relevant legislation. However, these messages should not promote any goods or services.
  • Merchants and traders do not require prior consent to send commercial electronic messages to their electronic communication addresses. Nevertheless, if the right to refuse mentioned in Article 9 is exercised, commercial electronic messages cannot be sent without obtaining consent.
  • Companies engaged in intermediary activities in accordance with capital market legislation do not need to obtain consent for sending commercial electronic messages for informative purposes to their customers.
  • In the scope of the third paragraph, before sending messages, electronic communication addresses of recipients who are merchants or tradesmen are recorded in the IYS by the service provider, and it is checked via the IYS whether recipients have exercised their right to refuse.
  • Obtaining Consent: 

According to Article 7 of the Regulation, consent can be obtained in writing or through all forms of electronic communication tools or through the IYS. The consent should include:

  • The affirmative declaration of the recipient that they accept the sending of commercial electronic messages.
  • In the consent;
  • There is a positive declaration of intent by the recipient indicating their acceptance of receiving commercial electronic messages,
  • It includes the recipient’s name and surname,
  • It contains their electronic communication address. For consents obtained via the IYS, it also includes the positive declaration of intent and the electronic communication address.

 

    • In the case of consent obtained in physical form, the signature of the consenting party is required.
  • If consent is obtained in electronic form, information on obtaining consent is sent to the recipient’s electronic communication address within 24 hours, providing an option for refusal. This provision does not apply to consents obtained through the IYS.
  • Commercial electronic messages requesting consent cannot be sent to the recipient’s electronic communication address. 

 

    • If consent is obtained through an agreement such as a subscription, sale, or membership agreement, and it is included in the content of the agreement, it is obtained at the end of the agreement, under the commercial electronic message header, before the affirmative declaration or signature, and with the opportunity for refusal, in at least 12-point font.
    • Consent given to one of the parties in agency, authorized dealership, or franchise agreements is considered to have been given to the other party, provided that it is limited to the goods, services, or brands subject to the agreement. However, this promotional relationship must be subject to a contract.
  • The service provider may use the obtained consent for promotional purposes, provided that this promotional relationship is subject to a contract. However, this promotional relationship must be subject to a contract.
  • In the consent text, the affirmative expression of will cannot be pre-selected.
  • The service provider cannot make obtaining consent for sending commercial electronic messages a prerequisite for the provision of their products and services.
  • In cases where consent is not obtained through the IYS, the burden of proof regarding the receipt of consent lies with the service provider.
  • Consents not recorded in the IYS are considered invalid.

  • Content of Commercial Electronic Message 

The content of commercial electronic messages is regulated by Article 7 of the Law and Article 8 of the Regulation as follows:

  • The content of commercial electronic messages must comply with the consent obtained from the recipient.
  • In the title or content of a commercial electronic message, for businesses, the MERSIS number and trade name, and for craftsmen, the name and surname along with the T.C. or tax identification number should be included. In addition to these, the service provider may include other identifying information such as the brand or business name.
  • For commercial electronic messages sent using limited space, such as short messages, for businesses, the MERSIS number, and for craftsmen, the name and surname along with the T.C. or tax identification number should be included. In addition to these, the service provider may include other identifying information such as the brand or business name.
  • In the content of voice messages, the trade name for businesses, and the name and surname for craftsmen should be included. The service provider may also include other identifying information such as the brand or business name.
  • In a commercial electronic message, depending on the type of electronic communication tool, the service provider’s accessible contact information, such as phone number, fax, short message number, and email address, must be included.
  • If the nature of the commercial electronic message is not explicitly evident from its content, a determining description, such as promotion, campaign, or information, should be included. This description should be placed at the beginning of messages sent via short message, in the subject line of emails, and at the beginning of voice calls.
  • If a commercial electronic message includes promotions, gifts, or promotional contests or games, this information should be clearly stated in the message.
  • The terms regarding the validity period of promotions and the obligations the recipient must fulfill to benefit from them should be presented in a clear and unambiguous manner, through easily accessible methods such as a specific URL address or customer service number dedicated to these matters.
  • Right to Reject Commercial Electronic Messages and the Method

Regulated by Article 8 of the Law and Article 9 of the Regulation.

    • The recipient may refuse to receive commercial electronic messages without providing any reasons. The recipient’s refusal notification invalidates the consent regarding the communication channel through which the notification is made.
  • The service provider should include in the commercial electronic message an accessible contact address, such as a customer service number provided by the service provider or offered by the IYS, a short message number, or a URL address specific to the refusal notification, to allow the recipient to make a refusal notification.
  • The method for refusal notification should be easy and free of charge, through the same communication channel through which the commercial electronic message was sent.
  • The option for refusal notification should be included in every commercial electronic message sent.
  • The use of the right to refuse by the recipient does not prevent the service provider from making notifications that are mandatory according to the relevant legislation.
  • The service provider should report the refusal notifications received within three business days to the IYS.
  • The recipient can also exercise the right to refuse through the IYS.

Image: Content of Commercial Electronic Message

  • Message Management System

www.iys.org.tr

The Message Management System (İYS) is a system that became a part of our lives with the Regulation Amending the Regulation on Commercial Communication and Commercial Electronic Messages, published in the Official Gazette on January 4, 2020.

In the definitions in the Regulation, İYS is described as “Commercial electronic message management system (İYS): A system that allows for obtaining consent for commercial electronic messages, the use of the right to refuse, and the management of complaint processes.”

In order to send a commercial message to an individual, that person’s information must be entered into the İYS without exception.

  • Whether the person is a tradesman or a merchant;
  • Even if it is a congratulatory message

It must be entered into the İYS system.

The institution responsible for the establishment and management of the İYS System is the Union of Chambers and Commodity Exchanges of Turkey.

  • Misdemeanours 

According to Article 12 of the Law, the Ministry of Trade can impose administrative fines 

  • ranging from one thousand Turkish liras to five thousand Turkish liras on service providers and intermediary service providers who do not comply with the information obligation in Article 3 of the Law. 
  • For service providers or intermediary service providers who do not comply with the obligation to obtain consent, administrative fines ranging from one thousand Turkish liras to five thousand Turkish liras can be imposed.
  • Those who do not comply with the obligations related to allowing the right to refuse can be subject to administrative fines ranging from two thousand Turkish liras to fifteen thousand Turkish liras.

In case of mass mailings, the amount of the administrative fine can be increased up to tenfold.

  • Complaints

Complaints In accordance with Article 14 of the Regulation, complaints are submitted electronically through the e-Government portal or the Ministry’s website, or in writing to the provincial directorate located in the complainant’s place of residence. The complainant, whether a natural person, should provide their name and surname, signature, and residential address, while legal entities should provide their name and address, along with the name and surname and signature of the authorized person or attorney. 

Complaints must be submitted within three months from the date of sending the commercial electronic message. You can file a complaint at https://tiss.gtb.gov.tr/ 

  • Electronic Commerce Information System

https://www.eticaret.gov.tr/sirketsorgula

According to the Notification on the Electronic Commerce Information System and Notification Obligations, the Electronic Commerce Information System (ETBIS) refers to the information system established by the Ministry for the purpose of registering service providers and intermediary service providers, collecting electronic commerce data, processing this data to produce statistical information, and enabling registration and notification within the scope of this Notification.

The following individuals, whether natural or legal persons, must register with ETBIS before commencing their activities:

  1. a) Service providers operating in their own electronic commerce environment.
  2. b) Intermediary service providers.
  3. c) Service providers who are domiciled within the country but engage in electronic commerce activities through an intermediary service provider located abroad, contracting, or receiving orders.

The following information is entered into ETBIS for registration:

  1. a) For natural or legal persons conducting business, the MERSIS number and tax identification number; for tradesmen and craftsmen, the Turkish Republic identity number and tax identification number.
  2. b) The mobile application and domain name for electronic commerce or intermediary activities.

Service providers and intermediary service providers registered with ETBIS shall provide information on the following matters concerning themselves:

  1. a) A notification-eligible e-Government address.
  2. b) The type of electronic commerce.
  3. c) Other commercial activities besides electronic commerce.

ç) The type of goods and services offered in the electronic commerce environment.

  1. d) Payment methods offered in the electronic commerce environment.
  2. e) Whether second-hand goods are offered for sale in the electronic commerce environment and the type of second-hand goods offered.
  3. f) Information regarding the services received from banks operating within the scope of Banking Law No. 5411, dated 19/10/2005, and payment service providers and electronic money institutions operating within the scope of the Law on Payment and Securities Settlement Systems, Payment Services, and Electronic Money Institutions No. 6493, dated 20/6/2013, except for the institutions mentioned in paragraph (f), as well as the payment methods not intermediated by the institutions mentioned in paragraph (f).
  4. g) Information regarding the services received from cargo and logistics operators who have obtained an M-type authorization certificate in accordance with the Road Transport Regulation, published in the Official Gazette No. 27255, dated 11/6/2009.
  5. h) Information about the electronic commerce infrastructure service providers from whom services are received.

ı) The country and payment method-based annual volume of such trade in the case of cross-border electronic commerce.

  1. j) Other information deemed necessary by the Ministry.

(2) Service providers operating in their own electronic commerce environment shall report their production location, warehouse addresses, and the domain names of intermediary service providers involved in cross-border electronic commerce activities in addition to the requirements stipulated in the first paragraph.

(3) Payment and electronic money institutions, banks, the Interbank Card Center Joint Stock Company, cargo and logistics operators, electronic commerce infrastructure service providers, and intermediary service providers shall report the anonymous statistical information determined by the Ministry, pertaining to contracts and orders made on the internet, in monthly periods. Information for one month shall be submitted by the last day of the following month until 24:00.

(4) During the notification to ETBIS, the virtual POS information of service providers and intermediary service providers is confirmed via the system through the Interbank Card Center Joint Stock Company.

As per Article 12 of Law No. 6563 on the Regulation of Electronic Commerce, it is stipulated that administrative fines ranging from five thousand Turkish Liras to twenty thousand Turkish Liras will be imposed on natural persons and private legal entities who fail to fulfill their registration and notification obligations to ETBIS within the scope of paragraph (d) of the first paragraph.

To download the Turkish-English bilingual version, click here

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