MESSAGE MANAGEMENT SYSTEM
WHAT IS THE MESSAGE MANAGEMENT SYSTEM ("IYS")?
The real and legal persons who want to send commercial electronic messages (service providers) has to obtain opt-in consent of recipients before sending any commercial/marketing/advertisement messages under Article 6 of the Law on Regulation of Electronic Commerce w.no 6563 (“the Law”). Commercial electronic messages are defined as “messages sent to electronic communication addresses (including audio calls) of recipients, for the purpose of promoting or advertising a product, service or business, and/or to increase the reputation of such through content including a greeting or a wish” in the Regulation on Commercial Communication and Commercial Electronic Messages (“the Regulation”). On January 4, 2020, the amendment to Article 5 of the Regulation stipulated a registration obligation to Message Management System (“IYS”) for all service providers that send commercial electronic messages. IYS aims to collect all opt-in consents in a single database accessible both by the service providers and the recipients. The recipients can easily manage their consents provided to various service providers via IYS. IYS also allows the recipients to file complaints against unlawful communications under the Law and Regulation. All opt-in consent processes regarding commercial electronic messages will be carried out via IYS in the new system.
This new system is somewhat similar to Robinson list practices across the world. A Robinson list is a list where people who do not wish to receive marketing messages may enlist in; Belgian Robinson list, British Telephone Preference Service, Canadian Do Not Call List, Italian Registro Pubblico delle Opposizioni ("Public Registry of Oppositions") French liste orange, New Zealand Name Removal Service, Spanish Robinson list, UK Mailing Preference Service, United States National Do Not Call Registry, Australian Do Not Call Register.
THE ISSUES TO BE CONSIDERED
All service providers that want to send commercial electronic messages are obliged to register with IYS. After the registration, service providers shall enter the opt-in consents they have previously obtained into the system. All recipients to whom commercial messages (advertisement, congratulations, promotion, etc.) have been sent should be listed and the recipient's contact address, consent type, consent date, communication channel (call/message/e-mail), and consent source should be determined.
The deadline for the service providers to register with IYS and to upload previously collected opt-in consents of recipients, is September 1, 2020. Opt-in consents that were not entered into the IYS will be deemed invalid. The recipients will be able to check and approve/object against the opt-in consents regarding themselves between September 1, 2020 - l December 1, 2020. In the new system, commercial electronic messages will not be sent to those whose opt-in consent has not been determined via IYS.
At this point, one of the important issues is that the burden of proof regarding the opt-in consents to be uploaded to the IYS shall be at the service provider until September 1, 2020. For this reason, service providers must check and make sure that they have received opt-in consent prior to transferring the user into the approved list in the İYS.
The burden of proof will be on İYS regarding the opt-in consents received through the İYS after September 1, 2020.
The Process of Obtaining Opt-in Consent:
Opt-in consent can be obtained; 1) in writing or 2) in any other electronic medium or 3) via IYS.
Once opt-in consent is obtained in the electronic medium, it is required to send a confirmation e-mail to recipients within 24 hours and provide the chance to opt-out.
The opt-in consent that is obtained in electronic format or in writing must contain; - the positive declaration of the receiver, - name and surname, - electronic contact address. The opt-in consent that is obtained in writing physically must contain the signature of the recipient as well.
It is required to report opt-in consents to IYS within 3 business days as of obtaining. All opt-in consents which were not reported to IYS will be deemed invalid.
It is not possible to request consent by sending messages/emails to recipients
The opt-in checkbox must not be pre-ticked.
The opt-in cannot be a prerequisite for service and good provided.
If consent is being obtained as a part of an agreement (membership, sale, etc.), the opt-in must be separate.
The context of the commercial electronic message has to be in accordance with opt-in consent obtained.
Opt-out Requests of Recipients:
Recipients can submit their opt-out requests via IYS. Also, opt-out requests which are not received through IYS must be reported to IYS within three (3) business days. Sending commercial electronic messages must be stopped within three (3) business days as of receiving the opt-out request of the recipient.
Every marketing message shall provide the recipient the ability to opt-out of further messages.
It is required to provide an easy and free chance to opt-out.
All messages must contain information about the sender such as the Mersis number, name of the entity and accessible contact information etc.
The recipients are not required to provide a reason when opting-out.
Intermediary Service Providers:
Service providers can also send commercial electronic messages through intermediary service providers. However, intermediary service providers cannot obtain opt-in consent from recipients to promote or market other party’s products.
The intermediary service provider must 1) not send commercial electronic messages on behalf of service providers who are not registered with IYS, 2) check whether the opt-in consent of the recipient is available on IYS when sending commercial electronic messages on behalf of service providers.
Service providers and intermediary service providers are obliged to retain a) the consents records for three years from the due date of the consent b) other records regarding commercial electronic messages for three years from the date of registration.
Obtaining opt-in consent is not necessary for commercial electronic messages if it:
Relates to change, use and maintenance of goods and services where the recipient has voluntarily given his/her communication information as part of the application, agreement, subscription etc.
Relates to collection matters, debt reminders, information updates, purchases, delivery and similar actions with respect to an ongoing subscription, membership or partnership.
Is sent to merchants and craftsmen. However, these people should also be registered with IYS and, it required to be checked whether they exercise their right to opt-out.
Is an information message sent to customers by a company which conducts intermediary activities in accordance with Capital Market Legislation.
If a breach of the Regulation occurs, recipients can file a complaint via IYS within three months of the message's sending date. Also, complaints can be filed to the Provincial Directorate in the recipient's domicile in writing or via the Ministry's website and e-Government gateway.
Since those who do not fulfill their obligations within the scope of the Regulation will face an administrative fine, the service providers required to comply with new amendments.
TIMELINE REGARDING IYS
HOW TO MAKE REGISTRATION APPLICATION?
Applications to IYS can be made by filling out the application form on the IYS website. During registration, a person authorized to represent the service provider must be appointed.
The following information is requested when making registration application;
the MERSIS number of the company and registration documents of trademarks (and electronically signed Undertaking on the Use of Main Services of IYS)
the ID number, mobile phone number, the corporate e-mail address of the authorized representative.
The number of registered approved electronic contact address based on the relevant trademark may also be downloaded to the IYS, if the service provider wishes.
Stages of Application:
Foreign service providers are required to submit the following documentation: (i) circular of signature, (ii) trade registry certificate/commercial activity certificate and (iii) signed version of “an undertaking on the use of main services of IYS.”