The Law No. 6563 on Regulation of Electronic Commerce (the “Law”) entered into force on 1 May 2015 introduced provisions concerning e-commerce and commercial electronic communication.
The Regulation on Commercial Communication and Commercial Electronic Messages (the “Regulation”) that came into force on 15 July 2015 regarding the procedures and principles of the Law, regulated the content of commercial electronic communication, approvals to be received from recipients, right to refuse and exceptions to the obligation to receive approval.
Amendment to the Regulation on Commercial Communication and Commercial Electronic Communications (“Amendment Regulation”) (together “Legislation”) defines a system “Commercial Electronic Communication Management System” ( “IYS”) to manage the procedures relating to the approval, rejection, and complaint of commercial e-communications.
In this article, we will discuss obligations arising from the Legislation, especially the obligation to register with IYS regarding commercial electronic messages, and the compliance with these obligations.
1. Approval of Commercial Electronic Communications
Pursuant to Article 6 of the Law, it is compulsory that the consent of recipients is obtained to send commercial electronic messages. According to the Amendment Regulation, all approvals must be registered with IYS. Service providers must register the consent obtained from recipients with IYS within 3 business days. Otherwise, the approval will be void. The approval received will be valid until and unless it is rejected by the recipient.
Exceptional cases that do not require the service providers to obtain approvals are regulated in Article 6 of the Regulation. Accordingly, the consent of the recipient is not required in the following cases:
- If the recipient had voluntarily provided its details to the service provider, and the message relates to the change, use and maintenance of the goods or services already obtained;
- The electronic message relates to the collection of debt, payment reminders, update of information, purchases, delivery or similar actions with regard to an ongoing subscription, membership or partnership, but does not promote other goods or services;
- Commercial electronic messages sent to the electronic contact addresses of merchants or craftsman; and
- Commercial electronic messages as an information message sent to customers by a company that conducts intermediary activities regulated by the capital market legislation.
Another critical issue in commercial electronic messages is that the approvals received from the recipient should meet the requirements. If the approval received from the recipient does not meet the necessary conditions, it will be deemed invalid and the criminal liabilities listed in Article 12 of the Law may be charged to the service provider. Therefore, it is important that the approvals received from the recipient comply with Article 7 of the Regulation. According to the Article, “approval may be obtained in writing or by any means of electronic communication or via IYS”. An approval should include the followings:
- Affirmative declaration of acceptance that the recipient agrees to receive commercial electronic communication;
- Name and surname of the recipient;
- Electronic contact address of the recipient; and
- Signature of the recipient (provided that the approval has been obtained in the physical environment).
2. Content of Commercial Electronic Communications
In accordance with Article 8 of the Regulation, the content of the commercial electronic communications must be complied to the approval received from the recipient. The commercial electronic message must include:
- Information (MERSIS number, address, etc.) about the sender on the subject (title) or content of the communication;
- Accessible contact information such as phone number, fax number, SMS number or email address which will allow the recipient to reach the service provider; and
- Unless it is clearly understood from the content, a statement indicating that the message is of a promotional or commercial nature.
3. Recipient’s Right to Refuse
Pursuant to Article 8 of the Law and Article 9 of the Regulation, the recipient may refuse to receive commercial electronic communications and void his/her prior approval. In addition, in accordance with Article 8 of the Law and Article 9(4) of the Regulation, the right to opt-out should be granted to the recipient in every message sent by the service providers. Therefore, every commercial electronic message without the right to opt-out will be against the Law and the Regulation.
4. Registration with IYS
The most important regulation introduced as part of the Legislation is the decision of establishment of IYS by the Ministry of Trade (the “Ministry”). IYS which is owned by Ileti Yonetim Sistemi A.Ş. provides the following:
- The elimination of grievances, such as the difficulty of determining to which firms the consent was given for the commercial electronic communications and requirement to contact each service provider individually to cancel the consent given by the recipient;
- Service providers can now collect recipients’ approvals needed in order to be able send commercial electronic communications to recipients with the system;
- The existing approvals can be stored securely within the system;
- Complaints can easily be made by recipients, along with rejection and approval procedures; and
- The government can display the status of message complaints and the subject of the complaint.
All natural and legal persons who wish to send commercial electronic communications have an obligation to register with IYS as per the new provision added to the Article 5 of the Regulation by the Article 4 of the Amendment Regulation.
Registrations to IYS can be made in the following schedule:
- As of January 2020, IYS registration applications are available for service providers;
- As of June 2020, service providers can have access to IYS platform;
- 31 Ağustos 2020 will be the last day to transfer the approvals received by the service providers in accordance with the regulation to IYS. Approvals that have not been submitted into IYS until this date will not be considered valid and commercial electronic communications will not be sent to the recipients who have not given approval. Recipients will be notified that their approval has been uploaded to IYS and recipients will be able to use their right to refuse from this date. Also, IYS will be opened for recipients (citizens) on that date.
30 Kasım 2020 will be the deadline for recipients who can access to IYS to make a refuse notification regarding their approval within IYS. Recipients who do not exercise their right to refuse until this date will be accepted as they approved. In the messages to be sent after this time, it is made compulsory to check the consent of the recipient from IYS.
5. Consequences of Failure to Register with IYS
As mentioned above, the recipient approvals that the service providers did not register with IYS until 31 Ağustos 2020 will be considered invalid. Therefore, after this date, service providers will not be able to send commercial electronic communications to those recipients without obtaining a new confirmation. If the service provider sends a commercial electronic message to the recipient even though it has not received consent from the recipient or has not sent this consent to IYS, the recipients can file a complaint within 3 months. In the event of violation of the Law and Legislation has been decided, an administrative fine will be imposed on the service provider within the framework of Article 12 of the Law. Administrative fines will be paid within 1 month from the date of notification according to Subclause 2 of the Article 17 of the Regulation.
6. Compliance with Commercial Electronic Communications
Compliance with commercial electronic communications contain followings:
- Registration with IYS,
- Converting the commercial electronic communications approvals that have already been obtained, into the format to be determined by IYS, and uploading approval texts into IYS,
- Making existing approval processes in compliance with the Legislation,
- Arranging and developing the commercial electronic message management system currently used by the service provider in order to obtain approval/rejection information in accordance with the legislation, to inform them to IYS and to check approval before making the communication,
Updating record retention times for existing approval and message submissions.