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1. IN GENERAL
The Code on Electronic Commerce Regulation (“Code”) numbered 6563 sets out the responsibilities of service providers and of its agents, the obligations to inform on e-commerce by means of agreements made through electronic media, and the sanctions to be imposed; while The Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation”) published in Official Journal dated 15 July 2015 and numbered 29417 lays down the obligations to inform regarding commercial communication made through electronic media, and rules and principles to comply with for commercial electronic communication.
This Memorandum hereby examines the term “commercial electronic communication” being among the significant actors of commerce which has swiftly moved in electronic media, and its legal dimension in light of the legislation without excepting The Regulation on Amendments on The Regulation on Commercial Communication and Commercial Electronic Messages (“Regulation on Amendments”) published in Official Journal dated 4 January 2020 and numbered 20998.
2. COMMERCIAL ELECTRONIC COMMUNICATION AND COMMERCIAL ELECTRONIC COMMUNICATION MANAGEMENT SYSTEM
A. CONDITIONS FOR SENDING COMMERCIAL ELECTRONIC COMMUNICATION
I. The Term “Commercial Electronic Communication”
Communication becomes more important day by day and gains higher momentum as a result of current developments. In present conditions, information can be transmitted without regard to distance and time that passes during communication decreases with each passing day. Such interaction has effects on business life, and people engage in trading activities regardless of distance. As a natural consequence, the legal framework of commercial activities occurs between people through electronic communication tools gain much more importance.
The term “commercial electronic communication” which has been generated as extension to electronic commerce activities, has first been set out in the Code; and defined in the Regulation in alignment with the Code as below:
“Communications with data, voice and display content which are sent for commercial purposes and which are made through electronic media using means such as telephone, call centers, facsimile, automated diallers, smart voice recording systems, e-mail, short message system services”
As can be inferred from the definition, due to electronic communication being part of business life as a result of fast improvements and new communication means continuously coming in people’s life, means for commercial electronic communication was not confined decisively, and kept wide using expressions “such as”.
In today’s conditions, commercial activities in particular through internet increases rapidly. Various regulations are issued so as to protect parties to trade activities as well as to avoid unjust treatment for those who do not wish to take part of the process, along with the purposes to accommodate to necessities of the time and support trade activities,
II.Consent to Sending Commercial Electronic Communication
Service providers, which are defined in the Code as real or legal persons engaged in electronic commerce activities, can send commercial electronic communication provided that they receive consent by recipients. Consent to sending commercial electronic communication can be received from the recipient as physical signature on the condition that it is made wet-ink as well as on any electronic media. In this regard, the consent received remains effective until the recipient exercises his right to refuse the commercial electronic communication, which springs from the Code. Recipients can refuse receiving electronic communication at any time and with no justification needed.
The consent includes the recipient’s positive declaration of intent regarding that he accepts to receive commercial electronic communication, the name and the surname of the recipient, and his electronic communication address. In case the consent is received in electronic media, the information of the receipt is given to the recipient’s electronic communication address within 24 (twenty-four) hours, enabling the recipient to refuse.
The service provider may not precondition the recipient’s consent to commercial electronic communication to provide products and services offered, and the burden of proof for the receipt of consent rests with the service provider.
III. Circumstances Under Which Consent to Commercial Electronic Communication Is Not Necessary
In scope of the article 6 (six) of the Regulation is listed the circumstances under which consent to commercial electronic communication is not necessary. In this context, no consent is sought for the circumstances listed below:
- In case the recipient provides his contact information for the purpose of communication; commercial electronic communications concerning change, use or maintenance of the use of the products or services provided,
- Communications that include notifications relating to continuing subscription, membership or partnership; or collection, debt reminder, information update, purchase and deliver or similar situations; and pursuant to the relevant legislation, obligation for service providers to give information,
- Commercial electronic communications which are sent to electronic communication addresses of recipients who are merchants and craftsmen,
- Pursuant to capital markets legislation, commercial electronic communications sent by agent companies to their clients for informational purposes
B. COMMERCIAL ELECTRONIC COMMUNICATION MANAGEMENT SYSTEM
Along with the regulations on commercial electronic communications under the Regulation, the Regulation on Amendments led to the initiation of “Commercial Electronic Communication Management System” (“IYS”); which aims to found a binding and systematic mechanism for all service providers in fulfilling their consent obligation which is the essential condition for sending commercial electronic communication. According to subparagraph (ö) of the article 4 of the Regulation, titled “Definitions”, IYS is defined as “a system which enables the receipt of consents to commercial electronic communications, the use of the right to refuse, and management of complaint process”.
As required by IYS rules, service providers are obliged to transfer the consents they have already received from the recipients to CMS until 1st of June, 2020. By this means, controlling commercial electronic communication processes will be easier for both service providers and recipients, as each service provider will have transferred the consents in their current databases to IYS.
That said, IYS will come into service for recipients after 1st of June, 2020; the recipients will be able to view service providers to which they have given consent to for commercial electronic communications by way of entrance to e-government system, where, at any time, they will be able to use their rights to refuse in scope of the Regulation, in so doing remove the consents they have previously given; or they will be able to give consent to a service provider to which they have not previously given consent.
Improvement of electronic commerce and it becoming gradually much more importance in overall trade volume for many industries in today’s markets leads many real and legal persons who engage in trade activities to electronic commerce; therefore, it helps to increase their recognition by commercial electronic communications or it leads them to inform recipients regarding their trade activities.
In scope of the Code, the consent to commercial electronic communications sending of which are subject to the recipient’s consent must be given in writing or by means of electronic media; and must include the recipient’s positive declaration of intent regarding that he accepts to receive commercial electronic communication, the name and the surname of the recipient, and his electronic communication address. Recipients may not be forced to give consent as the consent may not be determined as the precondition to provide services, and recipients must be informed explicitly on the fact that they may remove their consent at any time.