NEWS AND INSIGHT

Proposal Regarding the Amendment of the Electronic Commerce Approved

04 July 2022

Proposal Regarding the Amendment of the Electronic Commerce Approved

The Proposal Amending the Law on the Regulation of Electronic Commerce (“Proposal”) has been accepted in the Turkish Parliamentary Committee on Industry, Commerce, Energy, Natural Resources, Information and Technology. With the accepted Proposal, it is aimed to identify and prevent the unfair commercial practices in e-commerce. In line with this purpose, the Proposal made arrangements for electronic commerce intermediary service providers and electronic commerce service providers, taking into account the scales, in order to prevent unfair competition and monopolization in e-commerce, to facilitate the entry of new actors to the market, and to ensure a balanced and healthy growth of the market.

  1. NEW CONCEPTS

Two of the new concepts proposed with the Law on the Regulation of Electronic Commerce (“Law”) are "electronic commerce intermediary service provider" and "electronic commerce service provider". Accordingly, intermediary service providers that enable the conclusion of contracts or placing orders for the supply of goods or services of other electronic commerce service providers, regardless of whether they are making sales in the electronic commerce marketplace, are called "electronic commerce intermediary service providers". “Electronic commerce service provider”, on the other hand, is defined as service providers that make contracts for the supply of their own goods or services or take orders, either in the electronic commerce marketplace or in their own electronic commerce environment. Businesses operating in the fields of travel agency, civil aviation, private pension, banking, insurance, financing, capital markets, payment services, betting and games of chance, and electronic communication are excluded from the scope of these new concepts.

Two other new terms in the Law are "electronic commerce marketplace" and "electronic commerce environment". Within this concept, electronic commerce marketplace means the electronic commerce environment in which the electronic commerce intermediary service provider provides its intermediary services; and electronic commerce environment expresses the platforms such as the website, mobile site or mobile application, on which electronic commerce activities are carried out. If the e-commerce intermediary service provider has more than one e-commerce marketplace, these marketplaces will be included when calculating the net transaction volume; if the electronic commerce service provider has more than one electronic commerce environment, the volume realized through all of these environments will be included in the net transaction volume. In the calculation of the net transaction volume, the sum of all taxes, funds, fees and similar values of the final invoice or the document substituted for the invoice will be taken into account.

  1. PROHIBITION OF UNFAIR COMMERCIAL PRACTICES IN E-COMMERCE

The practices of the e-commerce intermediary service provider, which significantly impairs the commercial activities of the electronic commerce service provider to which it provides intermediary services, reduces electronic commerce service provider’s ability to make a reasonable decision, or causes it to become a party to a commercial relationship that it would not normally be a party to, by forcing it to take a certain decision, will be deemed to be unfair.

Commercial practices that are considered as unfair commercial practices are listed in the accepted Proposal as follows:

  • Failure to make the full payment to the e-commerce service provider in return for the sale of goods or services, no later than 5 working days from the sale price is at the disposal of the e-commerce intermediary service provider and the order reaches the buyer.

  • Forcing the electronic commerce service provider to sell goods or services with a campaign, including the unilateral change in the sales price by the electronic commerce intermediary service provider.

  • Not determining the conditions of the commercial relationship with the e-commerce service provider by a written or electronic intermediary services agreement, or not making this agreement clear, understandable and easily accessible by the e-commerce service provider.

  • Making retroactive or unilateral changes in the provisions of the intermediary services agreement to the detriment of the electronic commerce service provider or including any provision in the intermediary services agreement that allows this.

  • Receiving a fee from the electronic commerce service provider, even though no service is provided or the type of service provided and the amount or rate of the service fee are not specified in the intermediary services agreement.

  • The electronic commerce service provider's relegation in the ranking or recommendation system, restriction, suspension or termination of the service provided to the e-commerce service provider, even though no objective criteria are included in the intermediary services agreement or on the grounds that an application has been made to public institutions or judicial authorities. It is possible to say that these examples are similar to unfair commercial practices in the legislation on consumer protection.

 

  1. OBLIGATIONS

Some obligations have been imposed on e-commerce intermediary service providers. The content of the obligations varies according to the net transaction volume of the e-commerce intermediary service provider.

According to the Proposal, the e-commerce intermediary service provider shall not be able to offer for sale or act as an intermediary in the sale of goods bearing the trademark of itself or the trademark of the persons with whom it has an economic integrity, including the cases which e-commerce intermediary service provider has the right to use the trademark, in the e-commerce marketplaces where it provides intermediary services. Moreover, if these goods are offered for sale in different e-commerce environments, the e-commerce intermediary service provider will not be able to provide access between these environments and will not be able to promote each other.

Some additional obligations have been imposed on e-commerce intermediary service providers with a transaction volume of over 10 billion Turkish Liras. Accordingly, the e-commerce intermediary service provider will use the data obtained from the e-commerce service provider and the buyer only for the purpose of providing intermediary services and cannot use it while competing with e-commerce service providers in the e-commerce marketplaces or other e-commerce environments where it offers intermediary services. Additionally, e-commerce intermediary service providers within this scope, will provide the technical opportunity for the e-commerce service provider to transmit the data obtained due to their sales free of charge and to provide free and effective access to these data and the processed data obtained from them. On the other hand, if the e-commerce intermediary service provider operates in more than one e-commerce environment, it will not provide access between those environments.

Some additional obligations have been imposed on e-commerce intermediary service providers with a net transaction volume of more than 30 billion Turkish Liras. Namely, additional obligations will be imposed on e-commerce intermediary service providers whose net transaction volume in a calendar year is over 30 billion Turkish Liras, and whose number of transactions is over 100 thousand, excluding the cancellations and returns.

For example, it is not possible for e-commerce intermediary service providers to engage in advertising and discount activities in such a way that their marketplaces exclude competitors in the market. E-commerce intermediary service providers with a net transaction volume of more than 30 billion Turkish Liras shall not be able to restrict the commercial relations of the e-commerce service provider to offer or to advertise goods or services at the same or different prices through alternative channels, and shall not force them to provide goods or services from a specific person. In addition, any provision that allows this shall not be included in the intermediary services contract.

There are additional obligations imposed on e-commerce intermediary service providers with a net transaction volume of more than 60 billion Turkish Liras and more than 100 thousand transaction amount excluding cancellations and returns. Accordingly, e-commerce intermediary service providers will not be able to enable banks or companies with which they have an economic integrity, to perform all kinds of services they offer, including lending transactions in the e-commerce marketplaces where e-commerce intermediary service providers offer intermediary services, except for credit card payment transactions and other payment transactions. In addition, e-commerce intermediary service providers will not allow the acceptance of electronic money issued by electronic money institutions, which they are in economic integrity, in e-commerce marketplaces where they provide intermediary services.

E-commerce intermediary service providers that offer the sale or act as an intermediary in the sale of goods bearing the trademark of themselves or the trademark of the persons with whom they have an economic integrity, including the cases which they have the right to use the trademark, in the e-commerce marketplaces where they provide intermediary services; and the e-commerce intermediary service providers which are in economic integrity with business enterprises authorized as electronic money institutions, businesses engaged in the transportation of the goods; businesses authorized as freight forwarders or postal service providers must comply with the obligations by January 1, 2024.

  1. E-COMMERCE LICENSE

The e-commerce intermediary service provider, whose net transaction volume in a calendar year is over 10 billion Turkish Liras and the number of transactions excluding cancellations and returns, is over 100 thousand, must obtain a license from the Ministry of Commerce (“Ministry”) and renew its license in order to continue its activities. It has been decided that the obligation to obtain a license will be fulfilled as of January 1, 2025.

The license fee will be collected from the e-commerce intermediary service providers in advance by the Ministry in proportion to the net transaction volumes realized in the previous calendar year in their e-commerce marketplaces. Monetary thresholds will be increased each year according to the annual rate of change of e-commerce volume calculated by using ETBIS (Electronic Commerce Data System) data.

According to the Proposal, payments made to the payment service provider, with which the e-commerce intermediary service provider is in economic integrity, will be deemed to be made to the e-commerce intermediary service provider.

The sales made abroad through the e-commerce marketplaces of the e-commerce intermediary service providers and the e-commerce intermediary service providers with which they are in economic integrity will not be included in the calculation of the license fee.

  1. LIABILITY FOR THE UNLAWFUL CONTENT

Prior to the Proposal, there was a regulation stating that the service providers were not obliged to check the content provided by real and legal persons using the electronic media offered, and to investigate whether there was an unlawful activity or situation related to this content and the goods or services subject to the content. With the Proposal, it is stated that the intermediary service provider shall not be liable for unlawful matters related to the content offered by the service provider and the goods or services subject to the content, unless there is a contrary provision in other laws. Even if the e-commerce intermediary service provider is not held responsible for the unlawful content, if it is aware that the content offered by the e-commerce service provider is unlawful, it will remove this content without delay and notify the relevant public institutions and organizations about the unlawful matter. It is possible to say that this regulation is similar to the obligation to remove unlawful content imposed on the hosting provider in Article 5 of the Law No. 5651.

In the approved Proposal, the Ministry was authorized to ensure the development of electronic commerce, to protect the effective and fair competition environment, and to make regulations regarding the activities of service providers and intermediary service providers. In this context, the Ministry is authorized to receive the information of natural or legal persons who send commercial electronic messages via voice call and short message from the Information Technologies and Communication Authority.

  1. PROTECTION OF THE PERSONAL DATA

Prior to the Proposal, it was regulated that the service providers and intermediary service providers were responsible for the storage and security of personal data obtained due to their transactions, and that they could not transmit personal data to third parties or use them for other purposes without the consent of the person concerned. The Proposal refers to the Law on the Protection of Personal Data No. 6698 dated 24/3/2016 (“KVKK”), which also includes service providers and intermediary service providers and contains more comprehensive and detailed provisions on the processing of personal data, and removes the special regulation on this subject from the text of the Law. Therefore, the responsibility of service providers and intermediary service providers within the scope of personal data has been expanded and subjected to a more comprehensive regulation within the scope of KVKK.

  1. COMPLAINTS AND OBJECTIONS

Complaints and objections must include the clear identity and address information of the relevant parties, information about the product in dispute, the reasons for the removal of the product from publication or the necessity of publishing it, and other issues determined by the regulation. The right to apply to judicial and administrative authorities are reserved in accordance with the general provisions.

In case of complaints by the right holders against the products that violate their intellectual and industrial property rights, the electronic commerce intermediary service provider will remove the product of the electronic commerce service provider that is the subject of the complaint and notify the situation to electronic commerce service provider and the right holder. However, if the electronic commerce service provider presents the information and documents showing the opposite of the complaint to the intermediary service provider, it is possible to republish the product subject to the complaint.

  1. ADMINISTRATIVE FINES

With the accepted Proposal, an administrative fine of 10 thousand Turkish Liras to 100 thousand Turkish Liras has been foreseen for each electronic commerce service provider that has unfair practice in electronic commerce.

An administrative fine of 500 thousand Turkish Liras will be imposed on the electronic commerce intermediary service provider, which forces the electronic commerce service provider to sell products or services with a campaign, including unilateral changes in the sales price, for each electronic commerce service provider.

With the exception of electronic commerce environments included in the net transaction volume, an administrative fine of 10 million Turkish Liras will be imposed on the electronic commerce intermediary service provider that provides access between its own electronic commerce environments and promotes each other in these environments. An administrative fine of 20 million Turkish Liras has been imposed on the electronic commerce intermediary service provider, which provides an electronic environment for the publication of advertisements for goods or services, enabling the conclusion of contracts or placing orders for the supply of goods or services in the same environment.

If the violation is not terminated within the time given by the Ministry despite the application of administrative fines, or if the same violation is repeated within 1 year from the date of the notification of the penalty, an administrative fine will be applied the twice of the previous penalty. In addition, if the actions related to administrative fines are carried out with works and transactions aimed at misleading the Ministry, the said penalties will be applied 10 times. In any case, the total amount of administrative fines for a calendar year cannot exceed 500 million Turkish Liras for an intermediary service provider or service provider with a net transaction volume of less than 60 billion Turkish Liras.

The electronic commerce intermediary service provider and the electronic commerce service provider will only be able to carry out business and transactions related to past orders. If the violation is not eliminated within the given period, the Ministry may decide to remove the content or block access to the relevant internet addresses of the e-commerce intermediary service provider or e-commerce service provider.

It has been stated that the relevant provisions of the intermediary services agreements made before 1 January 2023 when the regulation will come into force, and which are not brought into compliance with this regulation within 6 months from the same date, will be deemed invalid.