“The Regulation on the Amendment of the Regulation on Commercial Communication and Commercial Electronic Messages” has been published in the Official Gazette No. 30998 on dated 4 January 2020 and significant changes have been made in the content of “Regulation on Commercial Communication and Commercial Electronic Messages” (“Regulation”) which published in the Official Gazette No. 29417 dated 15 July 2015. With these amendments , the procedures and principles regarding commercial communication via electronic communication tools have been regulated. The most important issue of these regulations is the Commercial Electronic Message Management System (the “IYS”) and the obligation to register in the IYS, which are included in our legislation with the aforementioned regulation and enable commercial electronic message approval, exercise of the right to refuse and execution of complaint processes.
- Concept of Commercial Electronic Message
As it is known, today, with the development of technology and the acceleration of communication, commercial activities can be carried out using communication tools. In this context, the legal nature of commercial communication and commercial electronic messages becomes important.
In accordance with the Regulation, the concept of commercial electronic messages is defined as “messages with data, audio and video content which is sent for commercial purposes and transmitted electronically using means such as telephone, call centers, fax, automatic call machines, smart voice recorder systems, electronic mail, short message service”. As it can be seen, the scope of the commercial electronic message concept has been kept quite wide with the expression “for commercial purposes” and the means by which messages can be sent are not strictly limited.
However, it should be noted that as the parties of the commercial communication, “Service Provider” refers to the naturel or legal persons engaged in electronic commerce, and “Buyer” refers to the consumer or the real or legal person acting for professional or other purposes. Accordingly, commercial messages which is transmitted to buyers by service providers during commercial communication activities will be evaluated within this scope.
- What Is IYS?
As it is known, in accordance with Article 6 of the Law No. 6563 on the Regulation of Electronic Commerce (“Law”), “Commercial electronic messages can only be sent to the recipients with their prior consent.” provision has been regulated and certain restrictions were imposed on sending commercial messages. However, it is stipulated that the recipients can refuse to receive commercial electronic messages at any time, without stating any reason , and the service provider has been made responsible for ensuring that the notification of rejection is transmitted easily and free of charge via electronic communication means and provides the necessary information in the message it sends.
Nowadays, with the widespread use of commercial communication and commercial electronic messages, monitoring and recording of mandatory approval notifications and rejection statements which are transmitted to the service provider has become difficult for buyers as well as service providers.
In order to fulfill these obligations and to prevent the problems, it has been decided to establish a system within the stracture of T.C. the Ministry of Commerce (“Ministry”) that enables the necessary commercial electronic message approval by service providers, to exercise the right of refusal for recipients and to manage complaint processes. This system, expressed as IYS, will record the approval and rejection notifications with a time stamp and keep them securely, and will fulfill the public inspection duty quickly and completely with the using of recipients’ right to complain.
- Receiving the Approval
Obligation to obtain the consent of the buyer in accordance with Article 5 of the Regulation, it is ensured with the statement follow; “The service provider obtains prior approval of recipient by itself or through the IYS for commercial electronic messages which is transmitted to the electronic communication addresses of the recipient on the purpose of promoting their goods and services, marketing , promoting their business or to increase their recognition with content such as celebrations and wishes.” The approval can be obtained in writing or through any electronic communication tool or through the IYS and the approval must include a positive declaration of intent regarding the recipient agrees to send commercial electronic messages, name and surname and electronic contact address of the recipient.
If the approval is obtained in writing in a physical environment, the signature of the approver must be present and if this approval is received electronically, it is stated that the notification regarding the approval should be sent to the electronic communication address of the recipient within 24 hours, allowing the possibility of refusal. In addition, it is necessary to store and archive documents which is received physically and to ensure the security and confidentiality of the documents. In the electronically received approvals, it is necessary to keep electronic records showing that the approval was obtained from the person who has the approval and be stored securely. It should be noted that, for the approvals which is not obtained through the IYS, the burden of proof that the approval has been obtained belongs to the service provider. The service provider and / or intermediary service provider are obliged to keep the records of approval for three years from the date of expiry of the approval, and other records regarding commercial electronic messages for three years from the date of registration. These records will be submitted to the Ministry upon request.
The approval which is received by the service providers for sending commercial messages will be valid until the recipient’s right to to refuse is exercised. In addition, the service provider will notify the IYS of the rejection notifications which is received to the service provider within three workdays.
In accordance with Article 6 of the Regulation, situations that do not require approval are regulated. According to this, prior approval is not required for the following matters;
- Commercial electronic messages regarding the change, use and maintenance of the provided goods or services in the event that the recipient provides contact information in order to contact him/her,
- Messages including notifications regarding ongoing subscription, membership or partnership status, collection, debt reminder, information update, purchase and delivery or similar situations, and the obligation to provide information to the service provider in the relevant legislation,
- Commercial electronic messages which is transmitted to the electronic contact addresses of recipient who are artificer or tradesmen,
- Commercial electronic messages sent for informative purposes to customers of companies engaged in intermediation activities in accordance with the legislation on the capital market,
However, if the recipient who are tradesmen or tradesman have made a declaration of rejection, messages will not be transmitted to these people.
- Obligation to Register to IYS and Registration Dates
Pursuant to the Regulation, all service providers who want to send commercial electronic messages are obliged to register with the IYS. Accordingly, whether residing in Turkey or not, natural or legal persons who wants to send commercial electronic message have to comply with legislation and register with IYS.
As in many countries, the new type of Coronavirus (Covid19) pandemic has affected daily life negatively in our country and has caused significant disruptions in business processes. For this reason, the deadline for uploading approvals to the IYS, which was previously decided as May 31, 2020, has been postponed to 31 August 2020. Also, Recipients are required to check the approvals that is registered by the service providers by 1 December 2020 at the latest. However, it should be noted that the approvals which is not transferred to the IYS by the service providers until September 1, 2020 in accordance with the Regulation will be deemed invalid and commercial electronic messages will not be sent to recipients who do not have approval in the IYS.
it is crucial to state that in case of violation of the Regulation and / or failure to fulfill the obligation to register to IYS, administrative fines will be imposed within the scope of Article 12 of the Law on the Regulation of Electronic Commerce No.6563 in accordance with Article 17 of the Regulation.
CELIKBAS LAW OFFICE
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