New Turkish E-Commerce Regulation under 22 Headings

As it is known, with the Law № 7416 published in the Official Gazette dated 01.07.2022 amendment on the Law № 6563 on the Regulation of Electronic Commerce (“Law”), in order to prevent unfair competition and monopolization in e-commerce, to facilitate the entry of market actors and to ensure the balanced and healthy growth of the market,fundamental innovations and changes have been made, particularly in the following:

  • Scope of activities of electronic commerce intermediary service providers (“ETAHS”),
  • Electronic commerce license,
  • The framework of the communication, contractual and service relationship between ETAHS and electronic commerce service providers (“ETHS”),
  • Unfair commercial practices,
  • Practices on intellectual and industrial property rights violations,
  • ETAHSs selling their own branded products
  • Use of data from ETHS and customers
  • Independent audit
  • Regulatory compliance report.

Along with the innovations and changes in the Law, the need for secondary regulations in which the details of the implementation of the amendments will be discussed.

In line with this need, the Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers (“Regulation”) was published in the Official Gazette dated 29.11.2022.

The effective date of the Regulation has been set in general as 01.01.2023, and only the effective and compliance dates for the exempted cases are shared in this article.

1. New Definitions have been brought to the Legislation.

  • The service relationship between ETHS and ETAHS has been defined as the Intermediary Service,
  • The system created by ETAHS to provide easy and free communication in the electronic commerce marketplace with the ETHSs for which it provides intermediary services is defined as Internal Communication Service,
  • The sum of net transaction volumes of ETAHS and ETHSs is defined as E-commerce Volume,
  • The telephone number and e-mail address declared by ETHS to ETAHS and verified by ETAHS are defined as the Confirmed Electronic Communication Address,
  • The total of ETAHS or ETHS’s revenues from sales other than electronic commerce and from electronic commerce are defined as “Total Sales Revenue”.

In addition to these definitions, ETAHS and ETHSs, which are classified according to the net transaction volume and number of transactions in the Law, contributing to the ease of reference, are defined as medium, large and very large scales in a parallel arrangement in the Regulation.

2. Methods and Obligations of ETHSs and ETAHSs to Provide Information are Regulated.

ETHSs are obliged to notify of their head office address, electronic mail address and telephone number and any changes thereof to ETAHS. The end of the day following the change has been set as the maximum period for the obligation to notify changes.

In the repealed regulation, the obligation to update the information, which also covers the ETHS operating through its own electronic environment, was regulated as the obligation of the ETAHS providing its services through the ETHS to provide information to the ETAHS.

The obligation to ensure that the recipient can access the documents required to be issued under the Tax Procedure Law №213 through the area created by the ETAHS is imposed on the ETHSs.

The Regulation adds the obligation to provide the e-mail address to the obligation to provide the telephone number of the ETHS in the repealed regulation.

ETAHSs are obliged to designate at least one real or legal person as a contact point for public institutions and organizations to communicate directly with them and to notify the Ministry of the contact information of this contact person through ETBIS.

3. ETAHSs are obliged to verify and keep up to date the identifying information provided by the ETHSs.

The obligation of ETAHSs to verify the identifying information provided by the ETHS and the prohibition of providing intermediary services to the ETHS whose identifying information is not verified are regulated.

ETAHSs are obliged to check the accuracy of the introductory information of the ETHSs within the first 3 months of each calendar year, to notify the ETHS whose information is outdated, and to limit the intermediary service to only existing orders if the information is not updated within 3 business days by the ETHSs receiving the notification.

It is regulated that ETAHSs must fulfill the verification obligation until 1.1.2024 for the ETHSs to which they provided intermediation services before 1.1.2023.

4. The State of Being Notified of Unlawful Content has been defined and the Maximum Period for Removing Unlawful Content from Publication has been determined.

The cases where the unlawful content is detected by ETAHS, the judicial authority notifies ETAHS of its decision regarding the unlawfulness of the content, and the Ministry and other public institutions and organizations notify ETAHS of the unlawful content are regulated as the cases where ETAHS becomes aware of the unlawful content.

ETAHS is obliged to remove the content from publication and notify the ETHS and relevant institutions and organizations within 48 hours from the date of becoming aware of the unlawfulness of the content provided by the ETHS.

5. Additional Practices to the Unfair Commercial Practices Regulated under the Law are Defined.

As it is known, Annex 1 of the Law regulates which acts constitute unfair commercial practices in the relationship between ETAHS and ETHS.

In addition to these practices, the Regulation defines the following as unfair commercial practices

  • Failure to keep the intermediary service agreement in the internal communication system to be provided by the ETAHS in a manner accessible by the ETHS,
  • Determining the right of withdrawal period over the periods specified in the Consumer Law without the prior consent of the ETHS,
  • Restricting ETHS’s commercial relations, offering goods or services at the same or different prices through alternative channels or advertising, or forcing ETHS to obtain goods or services from any person.

6. Even if the ETAHS, which works as a blocked payment with the Payment Service Provider, ensures the release of the amount by incurring its costs, it is regulated that the obligation to pay the ETHS within 5 business days will start from the day of unblocking, rather than release day.

7. Processes of Complaint, Objection to Complaint and Finalization of the Application for Intellectual and Industrial Property Rights Violation have been designed.

The method and content of the complaint application for infringement of intellectual and industrial property rights are regulated.

ETAHSs are obliged to remove the product subject to the complaint from publication and notify the ETHS and the right holder without delay (max. 48 hours) upon receipt of the complaint application for infringement of intellectual and industrial property rights.

The obligation to specify the methods of appeal against the complaint has been introduced in the notifications to be made by ETAHS to ETHSs.

The method and content of the objection against the complaint for infringement of intellectual and industrial property rights are regulated.

In the event that it is clear from the information and documents submitted that the ETHS is justified in its objection, the ETAHS is obliged to re-publish the product subject to the complaint within 24 hours at the latest from the receipt of the objection application and to notify the right holder and the ERO without delay.

The evaluation to be made by ETAHS is limited to the examination of the information and documents obtained from the ETHS.

8. Minimum Elements of the Intermediary Services Agreement and Unilateral Amendment Procedures are regulated.

It is regulated that at a minimum, the intermediary agreement shall include:

  • The intermediary service information provided to the ETHS,
  • Situations requiring the restriction, suspension or termination of the intermediary service and the related processes,
  • Information on the service fees requested from the ETHS and the circumstances and conditions under which these fees will be differentiated or updated,
  • The parameters used in ranking or recommending goods or services to the buyer, the priority ranking among them if there is more than one parameter, and the effects on ranking if a direct or indirect consideration is paid to influence the ranking,
  • The duration of payments to be made to ETHS,
  • Information about accessing to the internal communication system and the functioning of this system,
  • Information that the intermediary agreement will be stored in an internal communication system that is easily accessible by the ETHS,
  • If a period is determined above the right of withdrawal period determined within the scope of Law №6502, the information regarding this,
  • Proof of ownership of the intellectual and industrial property right and information on the use of this right and the measures taken regarding the infringement of the right,
  • Information on whether and for how long the ETHS will have access to the data obtained as a result of the activities of the ETHS during the provision of the intermediation service, following the termination of the contractual relationship.

Intermediary agreements to be entered into by medium, large and very large-scale ETAHSs;

  • The information that the ETAHS will provide the technical means for the ETHS to carry the data obtained from the ETHS and the buyer free of charge and efficiently and to provide access to such data during the term of the intermediation agreement,
  • The information that the data access and data migration requests of the ETHS will be met within fifteen days by anonymizing the recipient information has been determined as an additional minimum element.

We would like to note that the relevant provisions of the intermediary agreements concluded before 1.1.2023 and not brought into compliance with the Regulation within 6 months will be deemed invalid.

9. Under which conditions and in what manner the intermediary service may be restricted, suspended and terminated is regulated.

It is regulated that the intermediary service may not be restricted, suspended or terminated except for the objective criteria set forth in the intermediary agreement.

In the event that a situation requiring the restriction, suspension or termination of the intermediary service is detected by the ETAHS, the obligation to request an explanation from the ETHS within a period of at least 3 business days has been introduced.

It is regulated that the ETAHS may decide to restrict, suspend or terminate the intermediary service only if the explanations of the ETHS are insufficient or if the ETHS fails to provide an explanation.

ETAHSs are obliged to notify the ETHS of the assessment and decision regarding the restriction, suspension or termination of the intermediary service within 7 business days, and this period will start from the date the ETHS submits its explanation, or from the end of the 3 business day period granted to the ETHS if the ETHS fails to provide an explanation.

It is regulated that the intermediary service may be immediately restricted, suspended or terminated for reasons arising from the legislation or in cases involving public order , where there is a risk of delay or fraud, data breach or other cyber security risks.

It is regulated that the notifications of the ETAHS regarding the restriction, suspension and termination of the intermediary service should be made through the internal communication system and also through one of the approved electronic communication addresses, and the explanation of the ETHS should be made through the internal communication system.

10. Obligation to Establish Internal Communication System for ETAHSs Effective Date: 01.07.2023

It is regulated that ETAHS is obliged to establish a system called Internal Communication System in order to ensure easy and free of charge all kinds of communication in the electronic commerce marketplace with the ETHSs to which ETAHS provides intermediary services, and that the applications to ETAHS by the ETHSs and the storage of the intermediary agreement between them will be carried out through this system.

ETAHS is obliged to provide technical means for the information contained in the internal communication system to be viewed by the personnel assigned by the Ministry.

We would like to note that the transactions envisaged to be carried out through the internal communication system can be carried out by technical means such as electronic mail until 01.07.2023.

11. The Exemption for the Sale of ETAHS’s Own Branded Product has been clarified.

The prohibition and exceptions to the prohibition in the Law regarding the sale of the goods bearing the trademark or the right to use the trademark of ETAHS itself or the persons with whom it is in economic integrity, in the electronic commerce marketplaces where it provides intermediary services, or the intermediation of the sale of these goods are repeated.

“Book and electronic book readers”, which are included among the exceptions in the Law, have been clarified as “devices whose hardware and software exclusively enable the reading, listening and use of digital copies of electronic books”.

The date of compliance with the prohibition on the sale of goods bearing the trademark of ETAHS itself or of persons with whom ETHS has economic integrity, or for which ETAHS has the right to use the trademark, in electronic commerce marketplaces where it provides intermediary services has been set as 01.01.2024.

12. Promotion and Access Opportunity in Online Search Engines

The Regulation regulates the process of filing a complaint and the elimination of the violation regarding the prohibition of marketing and promotional activities in online search engines by placing advertisements on keywords consisting exclusively of registered trademarks that constitute the main element of domain names registered in ETBIS without obtaining the prior affirmative declaration of will of the ETAHS or ETHS regulated in Additional Article 3 of the Law in writing or electronically.

The application must be submitted to the KEP address of the Ministry with the following documents.

  • Trademark registration certificate
  • a notarized copy of the e-detection report showing the documents proving the violation, and in case this determination cannot be achieved for mobile or similar interfaces, a notarized copy of the documents proving the violation.

Within 24 hours following the receipt of the notification by the Ministry, the ETAHS and ETHS are obliged to eliminate the violation and inform the Ministry about it.

Except for the electronic commerce environments included in the net transaction volume of Medium, Large and Very Large Scale ETAHS and ETHSs, it is regulated that they cannot provide access between electronic commerce environments belonging to themselves or persons with whom they are in economic integrity and cannot promote each other in these environments.

13. Data Usage and Sharing. Effective Date: 1/1/2024

In addition to the purpose of providing intermediary services, the Regulation stipulates that the data obtained from the ETAHS or the recipient, excluding publicly available data as regulated under Additional Article 2 of the Law, may also be used by medium, large and very large-scale ETAHSs for the purpose of improving their intermediary services.

The following obligations are imposed on ETAHSs:

  • Sales and return data, features, descriptions and visuals of the products offered for sale by the ETAHS; questions, answers and evaluations regarding these products,
  • If obtained by ETAHS; periodic, special day, category and product-based most preferred product data, gender, age group, province and district distribution of buyers, as well as day and time of purchase data, evaluation points regarding the performance of ETHS,
  • A unique number issued by ETAHS for the product of ETHS and used to distinguish products in the electronic commerce marketplace,

to provide technical means for the efficient and free of charge transfer of data to ETAHSs and to provide access to such data within the term of the intermediation agreement.

A maximum period of 15 days has been set as the maximum time for the ETS to fulfill the requests of the ETS for data access and data transportation.

Creating an application programming interface for medium, large and very large-scale ETAHSs within the framework of certain conditions and rules so that different software can use the services defined on each other and exchange data between them in order to transfer and store the data belonging to the ETHS.

14. It is regulated that the Independent Audit Report must be sent to the Ministry within April of each calendar year.

15. Regulatory Compliance Report

Although the obligation to issue a report is not regulated in subparagraph f of Annex Article 2 of the Law, the period of issuance of the report and the issues that should be included in its content are regulated in the regulation.

It is regulated that medium, large and very large-scale ETSPs shall conduct an annual review of the content provided by the ETSP in order to determine the issues contrary to the Law, Law №6502, Law №6698 dated 24/3/2016 on the Protection of Personal Data, Law №5846, Industrial Property Law №6769 dated 22/12/2016 and the regulations enacted on the basis of these Laws, and prepare a report on this review and submit it to the Ministry in April of the following calendar year.

It is stated that the report should include the subject and relevant legislation of the contravention, the methods of detection and the measures taken.

16. Exceptions to Restrictions on Payments and Activities Specific to Refurbishment Centers

As it is known, Additional Article 2 of the Law introduces restrictions for ETAHSs in terms of payments, postal and transportation services and provision of advertisement services.

In this context, very large-scale ETAHSs and ETHSs have also become unable to provide the following in electronic commerce environments;

– Except for credit payment transactions made by credit card and other payment transactions within the scope of the Bank Cards and Credit Cards Law №5464 dated 23/2/2006 and numbered 5464, to carry out activities related to the realization of all kinds of services provided by the banks with which it has economic integrity or companies within the scope of Law №6361, including lending transactions,

– To carry out activities related to the acceptance of electronic currencies issued by electronic money institutions within the scope of the Law №6493 in which it has economic integrity,

– Pursuant to subparagraph (h) of the second paragraph of Article 12 of Law №6493 and the fifth paragraph of Article 18 of Law №6493, it may not provide services related to means that are outside the scope of Law №6493 or allow persons with whom it has economic integrity to provide such services

As an exception to this restriction, points, coupons, gift vouchers and similar facilities provided to buyers by the ETSP in return for purchases made by refurbishment centers operating within the scope of the Regulation on the Sale of Refurbished Products have been determined.

Likewise, in the event that very large-scale ETAHSs and ETHSs provide an electronic environment for the publication of advertisements for goods or services, they may not provide the opportunity to conclude contracts or place orders for the supply of goods or services in the same environment. In the event that these services are provided in different electronic media by itself or by persons with whom it has economic integrity, it is regulated that it cannot provide access between these media and cannot promote each other. As an exception to this rule, listing and access services provided to refurbishment centers operating within the scope of the Regulation on the Sale of Refurbished Products have been determined.

The compliance date for the two limitations mentioned above is 01.01.2024.

We would also like to note that ETHSs are not included in the scope of the activity limit for ETAHSs related to postal and transportation services.

17. The Scope of the Advertising Practice is Determined and Exceptions are Regulated. Effective Date: 1/1/2023

Promotional and marketing communications, including sponsorship activities, such as promoting goods and services online or offline, increasing their visibility or facilitating access to them, influencing the purchasing or leasing decisions of buyers, providing direct or indirect economic benefitsto real or legal persons in order to facilitate access to such goods and services, using written, audio and visual media, digital media, social media or any other means of communication such as open or closed areas or public figures will be considered as advertisements under the Regulation.

Sponsorship expenditures up to 25% of the advertising budgets to be calculated within the scope of the Law and the Regulation are included within the scope of the exemption and will not be included in these budgets.

In the event that the ETAHS exceeds its advertising budget by having the ETHSs to which it provides intermediary services or third parties make advertisements in a way to create results in its favor, it is regulated that the ETAHS will be deemed to be advertising expenditures with works and transactions aimed at misleading the Ministry.

It is clearly stated that the unused portion of the advertising budget for a calendar year cannot be transferred to subsequent periods or years.

18. The Scope of the Discount Application has been Determined. Effective Date: 1/1/2023

It is stated that the following practices shall be considered as discounts in all cases.

  • The material value of promotions, prizes, rewards, coupons, vouchers, gift vouchers, discount codes and freebies provided to the buyer or ETHS, regardless of the place of use.
  • The amount of payment credited to the buyer’s payment account with a payment service provider, prepaid card, account in an electronic commerce environment or made through a payment service provider, excluding payment refunds.
  • In the event that ETAHS bears the term difference fee to be applied to the buyer through the payment service provider contracted by ETAHS or ETHS in installment sales, the term difference fee incurred if ETAHS bears the term difference fee.
  • The discount amount provided through an intermediary via social media or other channels or through a discount code shared with the buyer by ETAHS.
  • The amount of discount provided for multiple purchases.
  • The monetary value of products offered free of charge in exchange for the purchase of a good.
  • The cost of shipping if free shipping is provided.
  • The difference between the total amount paid to cargo and logistics operators as shipping costs in a calendar year, less the amount charged to the ETS.
  • General discounts on commissions and other service fees at the level of groups determined within the framework of criteria such as the category of goods and services or the amount and number of transactions of the ETHS, or discounts on commissions and other service fees when operating as an ETHS for solidarity and assistance in disasters such as earthquakes, fires and floods

It is clearly stated that the unused portion of the discount budget for a calendar year cannot be carried forward to subsequent periods or years.

19. License Acquisition and/or Renewal Applications will be made through ETBIS.

It is regulated that the application for obtaining a license shall be made via ETBIS in the calendar year following the year in which the thresholds are exceeded, and the license renewal application shall be made via ETBIS in March of each calendar year as long as the thresholds are exceeded, by attaching the document showing that the license fee has been paid.

It is stated that the bank account information where the license fee will be deposited will be announced on the website of the Ministry.

20. The obligation to obtain a license will be fulfilled as of 1.1.2025.

21. The maximum period for license applications has been set as 15 days and the only condition for the license is the payment of the license fee, and the ETSPs and ETSPs that applied for a license were allowed to continue their electronic commerce activities within this period.

22. The obligation to ensure the necessary integration with the ETS for the simultaneous transmission of order information to the ETS and the updating of stock information of the goods sold by the ETS in electronic commerce marketplaces has been introduced.

Assessment

We are of the opinion that the regulations introduced in the Law and the Regulation in order to facilitate the entry of marketplace actors by preventing unfair competition and monopolization in e-commerce and to ensure the balanced and healthy growth of the market, together with effective and reasonable complaint evaluation processes, will serve to reach the point where the balance between ETAHSs and ETHSs should be.

The inability to access the invoices for purchases made through the ETAHS through the ETAHS posed a problem in terms of return and warranty processes. We are of the opinion that enabling the buyer to access the documents that ETHSs are required to issue under the Tax Procedure Law №213 through the area created by ETAHS will serve to solve an important problem in this respect.

Although the restrictions on advertising and discount budget practices and activity restrictions are likely to serve the purpose of preventing the concentration stated in the justification of the Law, we believe that we will witness whether they will have negative effects on the developments in the field of e-commerce and the formation of big-techs with the gradual transition process.

Contact: info@yuksellaw.com.tr

Kaynak:

  1. Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers
    Erişim: https://www.resmigazete.gov.tr/eskiler/2022/12/20221229-5.htm
  2. Law № 6563 on the Regulation of Electronic Commerce
    Erişim: https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6563.pdf