Significant Changes in the E-Commerce Regulation

Introduction

Several major changes had been made and new regulations had been introduced to the Law No. 6563 on the Regulation of Electronic Commerce (the “Law”) with the publication of the Law No. 7416 on Amending the Law on the Regulation of Electronic Commerce (the “Amendment Law”), in the Official Gazette numbered 31889 on July 7, 2022. With the publication of the Regulation on Electronic Commerce Service Providers and Electronic Commerce Intermediary Service Providers (the “Regulation”) in the Official Gazette dated December 29, 2022 and numbered 32058, the most comprehensive secondary regulation regarding the implementation procedures and principles of the Law came into force.

This legal alert will briefly elaborate on matters which the Regulation has brought changes, some of which are for every electronic commerce intermediary service providers (the “ECISP”) and electronic commerce service providers (the “ECSP”), and some for ones that reach above the thresholds specified in terms of net transaction volume and order number; such as the verification of information and data sharing obligations of ECISP and ECSP, issues relating to violations of intellectual and industrial property rights and procedures about illegal contents, elements of intermediation agreement to be signed between ECISP and ECSP, and rules relating to advertisements and discounts.

With the exception of some provisions regarding the use and sharing of data, the establishment and the use of internal communication system and the validity of the provisions of the intermediation agreement; all of the provisions introduced by the Regulation entered into force on 1 January 2023; and the effective dates of the remaining will be given below. However, it should be particularly noted that in terms of the transactions requiring the use of internal communication system, the obligations regarding the use of this system will be effective as of July 1, 2023; and until this date, these transactions are allowed to be carried out through “technical tools such as electronic mail”.

The Scope of Verification of Information and Data Sharing Has Been Expanded

• ECISP shall verify the introductory information of ECSP from the electronic systems open to the access of relevant institutions or, if not possible, from the documents obtained from ECSP. This verification shall be made in the first three months of every calendar year.

• Verification obligations of the information provided by ECSP; can be fulfilled until January 1, 2024; if intermediation services were being provided to ECSP before January 1, 2023.

• The data which shall be shared with ECSP effectively and free of charge as per the Law and by ECISP, with a net transaction volume above ten billion Turkish liras within a calendar year (the “Medium-Scale ECISP”) and ECISP with a net transaction volume above thirty billion Turkish liras within a calendar year and with at least a hundred thousand orders excluding returns and cancellations and which is subject to the obligations brought for Medium-Scale ECISP by the Regulation (the “Large-Scale ECISP”) and ECISP with a net transaction volume above sixty billion Turkish liras within a calendar year and with at least a hundred thousand orders excluding returns and cancellations and which is subject to the obligations brought for Medium and Large Scale ECISP by the Regulation (the “Very Large-Scale ECISP”), has been determined as follows;

• Sales and return data, features, descriptions and images of the products offered for sale by ECSP; questions, answers and reviews about these products;

• Seasonal, occasional, categorical and product-based data for the mostly preferred products; and buyers’ gender, age group, province and district distribution, and transaction day and time data; if such data was obtained by Medium-Scale, Large-Scale or Very Large-Scale ECISP;

• Rating score on the performance of ECSP;

• The singularized identification number given by Medium-Scale, Large-Scale or Very Large-Scale ECISP to the product of ECSP which distinguishes the products in the electronic commerce marketplace.

• The data shown above may be published if the title or brand of the electronic commerce marketplace where the source data was first created is shown.

• Requests of ECSP, regarding the transfer of and access to data shall be met by Medium-Scale, Large-Scale or Very Large-Scale ECISP within fifteen days by anonymizing the data.

• The provisions on data sharing will enter into force on January 1, 2024.

Changes Regarding Liability from Unlawful Content

• The following information and documents shall be sought for the complaint to be made by the holders of intellectual and industrial property rights:

• Registration certificate, banderol form or activity certificate showing right holding;

• Various information about the complainant;

• Internet address showing the product subject to the complaint;

• Grounds and evidence for the violation; and

• Declaration for assuming responsibility in case the information and documents presented are untrue.

• The following information and documents shall be sought for ECSP’s objection to the intellectual and industrial rights violation complaint:

• Various information about the objecting party;

• Grounds, documents and evidence for the objection;

• Invoices or documents substituting invoices, suitable for the proving of the originality of the product; contracts, other documents and evidences showing the holder and the previous holders starting from the first holder of the intellectual and industrial property right or the persons who released the product to the market with the authorization given by the right holder; and

• Declaration of the applicant for assuming responsibility in case the information and documents presented within the scope of the objection are untrue.

• While the term “without delay” was preferred in the Law for the period during which ECISP shall remove the content that it was aware of to be unlawful, from publication and immediately notify the relevant public institutions and organizations about such issue; this period has been specified as “forty-eight hours” with the Regulation.

• Medium-Scale, Large-Scale or Very Large-Scale ECISP shall conduct an annual review of the content provided by ECSP, in order to identify violations of the legislation given below and their secondary regulations and submit the review to the Ministry of Trade of Republic of Türkiye (“Ministry”):

• The Law;

• Consumer Protection Law No. 6502;

• Personal Data Protection Law No. 6698;

• Intellectual and Artistic Property Law No. 5846; and

• Industrial Property Law No. 6769.

The Procedures and Principles Regarding the Formation and Amendment of the Intermediation Agreement

• Many obligations brought by the Amendment Law and the Regulation and various issues stipulated to be agreed upon by the parties were determined as the minimum elements that shall be included in the intermediation agreement.

• Unless a longer period has been determined by ECISP, the amendments to the intermediation agreement shall be implemented at the end of a fifteen-day period from the notification date.

• This period shall be thirty days in cases which result in where technical development by ECISP is required; commission rates and other service fees are increased; the intermediation service is restricted, suspended or terminated; new penal clause against ECSP is introduced or the balance of rights and benefits against ECSP is deteriorated.

• ECISP will have the right to terminate the intermediation agreement without compensation if amendments to the intermediation agreement are to be implemented at the end of the thirty-day period; and by making a notification via the internal communication system before the expiry of this period.

• ECISP shall establish an internal communication system for the purposes of communicating ECSPs whom ECISP provides intermediation service to, and in order to obtain in an electronic environment and free of charge, the applications made by the ECSPs. The Ministry shall have access to the internal communication system.

• The provisions of intermediation agreements concluded before January 1, 2023; will be valid until July 1, 2023; even if they have not been made compliant with the Regulation through amendments. In addition, since the provisions regarding the use of the internal communication system will come into force as of July 1, 2023; notifications regarding the amendment of provisions and other related transactions can be conducted via e-mail or other technical tools.

Regulations About Advertising and Discounts

With the Amendment Law, serious limitations had been imposed on the budgets that could be allocated for advertising and discounts. With the Regulation, new arrangements have been introduced on various issues related to the matter, especially about the context of advertisements and discounts.

• Promotional and marketing communications with the following qualifications shall be considered advertisements in the implementation of the Regulation:

• Activities carried out by using any means of communication such as written, audio and visual media, digital media, social media or in open or closed areas or public figures and for;

• Promoting goods and services online or offline platforms, increasing their visibility or facilitating their access;

• Influencing buyers’ decisions to purchase or lease; and

• Sponsorship activities such as providing direct or indirect economic benefits to real or legal persons in order to facilitate access to the said goods and services.

• In the event that ECISP exceeds its advertising budget by advertising to ECSPs or third parties for which it provides intermediary services, it shall be deemed that ECISP has made advertising expenditures with acts and transactions intended to mislead the Ministry.

• ECISP will account for advertising expenditures by using the “Advertising Expenses” account under the “Marketing Sales and Distribution Expenses” main account in the uniform chart of accounts.

• The unused portion of the advertising budget for a calendar year shall not be transferred to the following periods or years.

• The costs undertaken by ECISP on behalf of buyers and ECSPs, and ECSP on behalf of buyers, and promotions, awards, points, coupons, gift certificates and similar opportunities and other economic benefits provided to them shall be deducted from the discount budget.

Notifications to the Ministry, Supervision and Licensing

• Medium-Scale, Large-Scale or Very Large-Scale ECISP and ECSP with a net transaction volume above ten billion Turkish liras within a calendar year and with at least ten million orders excluding returns and cancellations shall send the audit report, which is required to be prepared by an independent audit firm, to the Ministry in April every year.

• The application made to the Ministry for obtaining license and its renewal shall be decided within fifteen days by the Ministry.

• ECISP shall designate at least one natural or legal person that shall allow public institutions and organizations to communicate directly with him/her, and shall notify the Ministry of this person’s contact information via E-Commerce Information System (ETBIS).

Conclusion

It should be noted as a general rule that the Amendment Law had introduced very detailed regulations to the Law. On the other hand, issues which were expected to be regulated in detail under the relevant secondary legislation were not few. In this context, the Regulation brought about new obligations and cleared up some questions about how the Law shall be implemented. It would be beneficial for those concerned, who have come under many new obligations as per the Law as well as the Regulation, to make the necessary preparations as quickly as doable, in order to comply with the provisions that entered into force on January 1, 2023 and the provisions of the Law and Regulation that will come into force later.

Yours sincerely,

Vardar Şanlı

This note has been prepared in accordance with the legislative developments occurred until December 29, 2022 for general information purposes only and not for advertising purposes, and it does not contain any case-specific legal advice.