The Turkish Technology Ecosystem: New rules in Turkey for electronic commerce

With the recent amendments made in Turkey on the Law on Regulation of Electronic Commerce, new regulations were introduced.

With the amendments, electronic commerce market place was introduced. Accordingly, platforms such as the electronic commerce websites, mobile sites or mobile applications where the electronic commerce intermediary service provider provides its intermediary services were defined as electronic commerce marketplaces. Within this framework, the concepts of electronic commerce service provider and electronic commerce intermediary service provider, electronic commerce environment, net transaction volume and economic integrity were also defined.

With the aforementioned amendment, it is also indicated that enterprises operating in the fields of private pension, banking, insurance, financing, capital markets, payment services, betting and chance games, travel agency, civil aviation, and electronic communication will not be accepted as electronic commerce intermediary service providers or electronic commerce service providers.

In case of unlawful content

It is underlined that the intermediary service provider is not responsible for the content offered by the service provider and the unlawful matters related to the goods or services. However, if the electronic commerce intermediary service provider becomes aware that the content offered by the e-commerce service provider is unlawful, it is obliged to remove this content without delay and notify the relevant public institutions and organizations about the unlawful content. In addition, the electronic commerce service provider shall, upon the complaint of a right owner regarding intellectual and industrial property right infringement, remove the product of the electronic commerce service provider that is the subject of the complaint and notify the situation to it and the right owner.

In addition, the Ministry of Customs and Trade has been authorized to ensure the development of electronic commerce, to protect an effective and fair competition environment, to regulate the activities of service providers and intermediary service providers, and to determine the mandatory elements to be included in the intermediary agreement. In this context, the Ministry is also authorized to conduct audits and publish the results of the audits, and to appoint experts in cases that require special expertise or technical knowledge during the audits. In addition, the Ministry is authorized to receive the information of natural or legal persons who send commercial electronic messages via voice call and SMS from the Information Technologies and Communication Authority.

In addition, intermediary service providers and service providers are obliged to keep information, documents, ledgers and electronic records of their business and transactions within the scope of the law for ten years.

Prohibition of unfair commercial practices in electronic commerce

With the amendment, unfair commercial practices in electronic commerce are prohibited. With this respect, it is indicated that practices of the electronic commerce intermediary service providers that significantly disrupt the commercial activities of the electronic commerce service provider to which it provides intermediary services, reduce its ability to make a reasonable decision or force the latter to take a certain decision, cause it to become a party to a commercial relationship that it would not normally be a party to, are considered unfair commercial practices. Also a list of actions which are deemed unfair commercial practices has also been provided.

Obligations of electronic commerce intermediary service providers

The amendment sets forth the main obligations of all electronic commerce intermediary service providers Accordingly, each electronic commerce intermediary service provider shall comply with the following:

1. In the electronic commerce marketplaces where it provides intermediary services, it cannot offer for sale or act as an intermediary for the sale of goods bearing its brand or the brands of persons with whom it has economic integrity. In case these goods are offered for sale in different electronic commerce environments, it cannot provide access to such media and cannot promote them.
2.  It shall enable the electronic commerce service provider to place the information in the documents required to be issued within the scope of the Tax Procedure Law in the electronic commerce market place where the sale is made.
3. The electronic commerce intermediary service provider or the electronic commerce service provider cannot engage in marketing and promotion activities in online search engines by using their registered trademarks, which constitute the main element of the domain names registered in ETBIS, without obtaining a positive declaration of intent in writing or electronically.
4. The electronic commerce intermediary service provider shall verify the introductory information of the e-commerce service provider through the documents it obtains from it or from the electronic systems of the relevant institutions that are open to access.

In addition to the above, additional obligations are foreseen for electronic commerce intermediary service providers with a net transaction volume in a calendar year over ten billion Turkish liras, thirty billion Turkish liras and 60 billion Turkish liras.

Licensing obligation

Electronic commerce intermediary service providers with a net transaction volume of over 10 billion Turkish Lira and over 100,000 transactions, excluding cancellations and returns, in a calendar year will have to obtain a license from the Ministry of Commerce and renew their license in order to continue their activities.

Entry into force

Although the amendments will enter into force on 1 January 2023, gradual effective dates are determined for some obligations. For example, electronic commerce intermediary service providers that offer or mediate the sale of goods bearing their own brand or the brands of the persons it has an economic unison, e-commerce intermediary service providers of electronic money institutions, the companies engaged in the transportation of goods, the companies authorized as freight forwarders or postal service providers will comply with some of their obligations by January 1, 2024. In addition, the obligation to obtain a license will enter into force as of January 1, 2025.