- Bensu Özdemir
Regulation on E-Commerce Intermediary Service Providers and E-Commerce Service Providers
The Law on the Regulation of Electronic Commerce was amended on 07.07.2022. Accordingly, the Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers (“Regulation”) was published in the Official Gazette on 29.12.2022. Within the scope of the relevant Regulation, the obligations of electronic commerce intermediary service providers (“ETAHS”) and electronic commerce service providers (“ETHS”), unfair commercial practices in electronic commerce, illegal content, intermediation agreement, electronic commerce license and other issues related to electronic commerce are regulated. Also, certain transitional periods regarding the implementation of the Regulation have been foreseen. The general effective date has been determined as 01.01.2023, except for the provisions with a different effective date below.
Some important terms and definitions in the Regulation are as follows:
Electronic commerce: “All kinds of online economic and commercial activities carried out in electronic environment without physical confrontation”,
ETAHS (Please note that the Regulation provides three classifications for ETAHS depending on the net transaction value. There are three classifications: Medium, Large and Very Large): “An intermediary service provider that enables the conclusion of contracts or placing orders for the supply of goods or services of electronic commerce service providers in the electronic commerce marketplace”,
ETHS (Please note that the Regulation provides three classifications for ETHS depending on the net transaction value. There are three classifications: Medium, Large and Very Large): “A service provider that makes a contract or receives an order for the supply of goods or services in the electronic commerce marketplace or in its own electronic commerce environment”, and
Electronic commerce marketplace: “The electronic commerce environment where ETAHS offers its intermediation service.”
Obligations and other issues regulated within the scope of the Regulation are as follows:
1- Obligation to Provide and or Verify Information
· ETHS: The information to be provided under the “contact us” section on the ETHS’ website has been regulated. The contact us section must be accessed directly on the home page of ETHS's own electronic commerce environment. In addition to that, it has been determined what information must be provided in the area allocated ETHS by the ETAHS. If there is a change in the information provided, it is obligatory to inform ETAHS by making the relevant updates.
· ETAHS: The information to be provided under the “contact us” section is regulated. The section must be accessed directly on the home page of ETAHS' own electronic commerce environment (marketplace). Further, ETAHS must provide the necessary tools to ETHS for ETHS to display and update the mandatory information required by the Regulation.
ETAHS must verify the information provided by ETHS from the publicly available website of the ETHS. If that is not possible, such verification must be made through documents obtained directly from the ETHS. ETAHS must not provide intermediary services to ETHS which it was not able to verify. ETAHS must retain the introductory information of ETHS, for which it provides intermediation services, up to date.
ETAHS shall designate a natural or legal person as a contact person that would allow public authorities and organizations to communicate directly with the ETAHS. ETAHS shall also provide the contact information of the contact person to the Ministry of Trade (“Ministry”).
2- Obligations Regarding the Order
ETAHS, and ETHS operating in its own electronic environment, are obliged to make sure that second-hand products are sold under a different category/section from unused products. Further, the Regulation repeats the requirements stipulated previously with the Regulation on Distant Contracts, such as displaying the full price including the tax, displaying the full terms of the sale, calculation method of the price and so on.
Lastly, similar to the Law on Regulation of Electronic Commerce, ETAHS, and ETHS operating its own electronic environment are obliged to confirm the order to the buyer without delay via the electronic commerce environment where the transaction is made, and also by at least one of the means such as e-mail, text message or telephone call.
3- Unlawful Content and Unfair Commercial Practices
· Unlawful Content: Unless otherwise regulated, it is regulated that ETAHS is not responsible for the content provided by ETHS and the goods or services subject to such content. However, if it is evident that the content presented by ETHS is unlawful, ETAHS must remove the relevant content within 48 hours, and must notify the relevant content to the relevant public authorities.
· Unfair Commercial Practices: It has been regulated that practices which significantly disrupt ETHS' commercial activities, reduce its ability to make a reasonable decision, or force it to take a certain decision, causing it to become a party to a commercial relationship that it would not normally be a party to are accepted as an unfair commercial practice. Unfair commercial practices are not stipulated as numerus clausus and these are examples. For instance, a longer right of withdrawal extending 14 days cannot be set by the ETAHS prior to collecting the consent of the ETHS.
In particular, large and very large scale ETAHS cannot restrict ETHS' commercial relations with third parties. Further, ETAHS cannot restrict ETHS to offer goods or services or advertise the products at the same or different prices through alternative channels. Lastly, ETAHS cannot mandate ETHS to procure products or services from specific persons. Any provision that enables such cannot be included in the intermediation agreement.
4- Violation of Intellectual and Industrial Property Rights
The procedure to file a complaint about the violations of intellectual and industrial property rights are stipulated in the Regulation. The procedure for objection against the complaint and the procedures for finalizing the complaint are also stipulated.
In this respect, in case of a ETHS selling services/goods through a ETAHS, the relevant complaint can be directed to ETAHS. This complaint can be sent through the internal communication system (which is to be established) or via notary public or KEP (registered electronic mail).
ETAHS must notify ETHS and the rights holder of the situation by removing the product subject to the complaint, within 48 hours as of the receipt of the complaint. In the notification made to ETHS by ETAHS, the methods of objection against the complaint application should be clarified.
Objection against complaint applications regarding the violation of intellectual and industrial property rights can be made to ETAHS by ETHS, whose product has been removed from publication, through the internal communication system, notary public or KEP, including the grounds for objection and other supporting/proving information documents.
If it is clearly understood from the information and documents submitted by ETHS that ETHS is right in its objection, ETAHS must re-publish the product subject to the complaint within 24 hours at the latest after the objection application is received and notify the right owner and ETHS without delay.
The method for notifying any infringement to ETHS that run its own electronic commerce environment is not stipulated in the Regulation. The methods available in the IP and Industrial Rights legislation may be used for such purpose.
5- Intermediation Agreement
· Establishment and Amendment of the Agreement: The conditions of the commercial relationship between ETAHS and ETHS will be determined by an intermediation agreement made in writing or electronically, and the minimum requirements of the intermediation agreement are included in the Regulation. In the event of an amendment in the intermediation agreement, the methods of notification by ETAHS, the periods in which the amendment will be implemented and in which cases ETHS has the right to terminate without compensation and exercise of such right are regulated by the Regulation. With the minimum requirements provided by the Regulation, the aim is to provide a minimum protection for ETHS, and it is aimed to prevent ETHS from losing their rights in case of an amendment of agreement.
· Restriction, Suspension and Termination of Intermediation Services: It is not possible for ETAHS to restrict, suspend or terminate the intermediation service, except for the objective criterion included in the intermediation agreement. However, if there are situations that require restriction/suspension or termination, the process should proceed in accordance with the procedures and principles determined by the Regulation. In the event that the intermediation service is restricted, suspended or terminated, ETHS is obliged to conclude its current orders, provided that it is in compliance with the intermediation agreement and the law.
6- General Obligations
· An internal communication system shall be established by the ETAHS and communications shall be provided in this way in order to provide easy and free communication with the ETHS, for which ETAHS provides intermediary services in the electronic commerce marketplace. The effective date of this provision is 01.07.2023.
· In electronic commerce marketplaces where it offers intermediary services, ETAHS cannot offer to sell or intermediate the sale of the goods bearing;
- its own trademark,
- trademark of the persons with whom it has economic integrity with or,
- trademark that ETAHS has the right to use.
If these goods are offered for sale in different electronic commerce environments, it is forbidden to provide access between these media and to promote each other.
· ETAHS or ETHS cannot provide marketing and promotion activities in online search engines by advertising on keywords consisting exclusively of registered trademarks that form the main element of domain names of persons who are not in an economic integrity, without prior affirmative declaration of intent.
· Medium, large and very large scaled ETAHSs must comply with the procedures and principles regulated by the Regulation when using the data that they collected. Within this scope, ETAHS must;
- use the data obtained from ETHS or the buyer only for the purpose of providing and improving the intermediation service,
- not to use the data obtained from the intermediation service when it acts as an ETHS or while competing with other ETHS through an ETHS which is in economic integrity with, and
- provide technical means for ETHS to transfer the data specified by the Regulation free of charge and effectively and to provide access to these data within the term of the intermediation agreement. The effective date of this provision is 01.01.2024.
· Medium, large, and very large scaled ETAHS and medium, large, and very large scale ETAHS must notify ETBIS about the company establishment and share movements that result in 5% or more share to be transferred (except for shares that are listed on the stock market) within 1 month of registration of such with the share ledger.
· Medium, large, and very large scaled ETAHS and medium, large, and very large scale ETAHS are subject to independent audit and the minimum issues to be included in the independent audit report are determined by the Regulation.
· Medium, large, and very large scaled ETAHS should conduct an annual review of the content provided by ETHS and prepare a report of compliance with the legislation on this review and submit it to the Ministry.
· Important restrictions for very large-scale ETAHS and very large-scale ETHS are also stipulated. ETAHS cannot use payment service providers or any type of loan service providers, including banks, which it has economic integrity with within its electronic commerce environment.
7- Advertising and Discount Budget
The amounts that can be allocated within the scope of the “Advertising Budget” and “Discount Budget” are regulated by the Regulation, by specifying the practices that would be deemed as advertisements and discounts in the implementation of the Regulation.
In general, the Advertising Budget and the Discount Budget must be determined based on proportion to certain economic indicators such as the net transaction volume.
With this provision, it is aimed to prevent large and very large-scale ETAHS/ETHS from following aggressive advertising policies, practices that mislead the consumer and disrupt the competitive environment. It is also aimed to prevent unfair competition in the determination of the budgets that can be allocated for advertising and discounts and the amounts that can be allocated within the scope of these budgets with a casuistic method.
8- Electronic Commerce License
The license application process, finalization of the application, license fee to be paid, and how the monetary thresholds will be calculated are determined for ETAHS and ETHS that are obliged to obtain an electronic commerce license.
The Ministry's authority to conduct audits and disclose audit results has been regulated. Also, the Ministry's authority to request all kinds of information, documents, commercial books, and electronic records related to matters falling under its authority, to examine them and take samples of them, to receive written and oral information from interested parties has been stipulated.
Authors: Burak Özdağıstanli, Hatice Ekici Tağa, Bensu Özdemir