ABSTRACT
The Law of Electronic Commerce Regulation numbered 6563 has filled an important legal gap by gathering the regulations on commercial communication, liabilities of service provider and intermediary service providers also called Web e-commerce intermediaries, agreements made via electronic communication devices, obligations of informing concerning electronic commerce. The Law which entered into force on May 1st, 2015, describes parties to electronic commerce and lays down their rights and responsibilities. In this article, the legal description of the actors engaging in electronic commerce by the Law numbered 6563, obligations laid down by the Law for these actors, especially the obligation of protection of personal data, are assessed.
1.INTRODUCTION
By development of information technology, the new notions related to many areas of law such as internet, access, content provider and service provider have emerged; those new notions caused the emergence of new issues, which cannot be solved by old law system and legislation and does not resemble previous problems. In order to find a solution for these new issues, in recent years, the related specialist commissions of Turkish Grand National Assembly have conducted a set of works. Accordingly, even though there has been some amendment to the Turkish law, which have fairly concerned information sector, until recently, there were not any specific law in Turkish legislation regulating the subjects of electronic commerce in detail and giving an opportunity to make some commercial transactions through internet environment such as production, presentation, sale, insurance, distribution and paying prices of goods and services. By the Law of Electronic Commerce Regulation numbered 6563 (“the Law” or “the Law numbered 6563”) which was accepted on October 23rd, 2014 and entered into force on May 1st, 2015, some regulations concerning electronic commerce have been laid down. The Law numbered 6563 gathers the regulations on commercial communication, liabilities of service provider and intermediary service providers (hereinafter “ISPs”), agreements made via electronic communication devices, obligations to inform concerning electronic commerce and applicable sanctions under a single roof. Thus, the necessity to apply some different codes which generally are not directly related to electronic commerce has been ended1.
In the first part of this article, it will be probed how the Law numbered 6563 describes the actors which are engaged in electronic commerce. In the second part of this article, the important obligations laid down by the Law for these actors will be mentioned. Due to having great importance both for personal rights and also for information technology law, the obligations of protection of personal data will be examined under a different heading at the last part. Furthermore, in this article, the matters that should be considered by ISPs supplying electronic platform for others’ commercial activities in scope of the Law numbered 6563, when the membership or usage agreements are drafted to be made with service providers or purchasers who take advantage of the platforms in practice will also be discussed.
2.THE PARTIES OF ELECTRONIC COMMERCE DESCRIBED IN THE LAW NUMBERED 6563
In electronic commerce, when making a classification based on parties, it is possible to mention three different actors, according to the scope of the Law numbered 6563: service providers, purchasers and ISPs.
2.1. Service Providers
In the article 2 of the Law, under the heading of “Definitions”, service providers are defined as the real or legal persons engaging in electronic commerce activities. If necessary to make this definition objectified, the real or legal persons who provide goods and/or services on shopping websites which are frequently used by costumers in daily life can be accepted as service providers. It must be indicated that, it looks like the Law intends to signify the “seller” of goods and/or services by using the term service provider.
2.2. Purchasers
Purchasers mentioned in many articles of the Law are not specifically defined in the Article 2. However, when the relevant articles are examined, it can be found out that the law maker means that purchasers are the persons who benefit from services provided by the service providers in electronic platforms. Furthermore, the issue of uncertainty of purchasers’ obligations and/or liabilities in scope of their e-commerce activities is one of the subjects that the Law does not regulate. As a consequence, no sanction is laid down for purchasers in the Law. The interpretation of applying the legislation having general provisions such as Code of Obligations and Commercial Code for determining the applicable rules for purchasers will be an appropriate interpretation in this context. Having said that, there is no doubt about that the provisions related to costumers in the Law of Consumer Protection numbered 6502 and the Regulation on Distance Contracts, published on the Official Gazette numbered 27866, dated March 6th, 2011, can be applicable to the purchaser mentioned in the Law numbered 6563.
2.3. Intermediary Service Providers
ISPs are one of the electronic commerce actors defined in the Law. In the Law, ISPs are defined as the persons who provide electronic platform for others to do financial and commercial activities. In other words, the persons who bring service providers and purchasers together in an electronic platform. In this direction, the real or legal persons who establish e-commerce websites which provide electronic environment for service providers and purchasers are the ISPs. Web e-commerce intermediaries or ISPs connect buyers and suppliers and enable Internet transactions between them.
3. IMPORTANT OBLIGATIONS PRESCRIBED BY THE LAW
The Turkish Code of Obligations is surely a guideline for both the conclusion of the contract through electronic devices and its time of conclusion. Again, the intentions of the parties should also be interpreted according to general law provisions. Additionally, the Law no.6563 stipulates service providers and ISPs to fulfill some obligations during such services provided in an electronic environment. The most important ones of such obligations are stated in the subheadings below.
3.1.The Obligation to Inform
In an electronic environment, , the purchaser who wants to receive the service would like to get information about the service provider and the qualifications of the service easily as can be in a physical environment. Hence, the purchaser will have a contractual relationship beyond making any fault under law of obligations. So, by considering this requirement, the law maker regulates the obligations of submitting information concerning agreement and service subject to agreement before making the agreement, defined as the obligations to inform in the article 3 of the Law. According to the relevant article, before making an agreement via electronic media, service providers have to submit their easily accessible and current introductory information; and information regarding technical steps to be followed to make such agreement; and information concerning whether the agreement will be undisclosed or not, and whether and how long the agreement will be accessible for purchaser after the agreement is made. However, there is a contradiction between this provision which states obligation to inform about whether the agreement will be undisclosed and paragraph 4 of the same article. This is because of according to the paragraph 4, service providers have to provide opportunity for purchasers to hide the agreement’s provisions and standardized terms of agreement instead of informing them whether the agreement will be disclosed or not. Although, having same provision with article 5 of the Regulation on Distance Contracts which lays down obligation of preliminary informing will generate a discussion for whether article 3 of the Law repeals obligation of preliminary informing, it is obvious that article 3 of the Law have an equivalent regulation with obligation of preliminary informing. It must be noted that, benefiting from the services provided through internet have become a part of our daily life. In this respect, it has a great importance for service providers to perform such obligation and inform purchasers before making an agreement with them. The obligation to inform laid down by article 3 of the Law is not arranged only for sale-purchase relationship in electronic platforms but also for any services relationship that can be made in an electronic platform.
It should be underlined that concerning agreements made in an electronic environment, according to paragraph 3 of article 3 of the Law, if the parties of an agreement are not costumer, they may agree otherwise above mentioned provisions (except paragraph 4 of the article). So, service providers may be released from the obligation to inform in case of that the parties are counted as traders for the agreement. Another provision that cannot be otherwise agreed is that the obligation to inform is not applicable for the agreements made solely via electronic mail or similar individual communication media.
Under the Law numbered 6563, the sanctions to be applied to the e-commerce actors are also regulated and so according to the paragraph 1 of article 12 of the Law, under the heading of “Penal Provisions”, failing to perform such obligation to inform causes application of a sanction of administrative fine. In this regard, the service providers who fail to perform the obligation to inform have to pay an amount between thousand Turkish liras and five thousand Turkish liras as administrative fine.
3.2.The Obligations Regarding Purchase Order
Previous stage of making agreement is different from that of ordering online. Thus, unlike the provisions of the Law stated above concerning previous stage of making an agreement, article 4 of the Law regulates service providers’ obligations during the stage of ordering by purchaser.
According to paragraph 1 of the relevant article, service providers ensure that purchaser can clearly see the terms of the agreement and total payment amount before confirming the order and entering their payment information. Once again, service providers shall instantly certify the ordering by purchaser as received. The last clause of paragraph 1 of same article stipulates that an order confirmation and confirmation of the receipt shall be counted as done when the parties possibly can reach such declarations.
Paragraph 2 of the article 4 of the Law does not state an obligation to inform, but it states an obligation of performance regulated for service providers. According to that, service providers should provide effective and accessible devices for purchasers to determine and fix data entering errors before giving an order. It should be again noted that, in agreements made in an electronic environment, according to paragraph 3 of article 4 of the Law, if the parties of an agreement are not costumer, then they may agree otherwise abovementioned obligations regarding order (except the obligation of confirmation that order is received). Another regulation came up with article 4 is that the obligations regarding order are not applicable for the agreements made solely via electronic mail or similar individual communication media.
Failing to perform such obligations, like failing to perform the obligation to inform, brings forth the administrative sanctions. According to article 12 of the Law, the service providers who do not provide opportunity for purchasers to clearly see the terms of agreement including total amount payable at the stage of confirming an order and before entering their payment information, shall be fined to pay an amount from one thousand Turkish Lira to five thousand Turkish Lira. Once again, if service providers do not confirm that they receive an order or do not provide effective and accessible devices for purchasers to determine and fix data entering errors before ordering, they shall pay an administrative fine in the amount from one thousand Turkish Lira to ten thousand Turkish Lira.
3.3.The Obligations for Commercial Electronic Messages
As it is known, commercial electronic messages have a major importance on advertising and marketing sector. Messages and e-mails concerning goods and services, special offers and gifts are sent by service providers. When considering the frequency of those messages and e-mails for advertising purposes, which are received by costumers, it is apparent that the regulations of the Law numbered 6563 relating to commercial electronic messages will be gladly welcomed by costumers. Indeed, the Law indicates some conditions which are stated afterwards in this article, for sending such messages and its contents. Furthermore the Law grants purchasers the right to refuse receiving such messages.
The regulations related to the matter of commercial electronic messages take place in article 6, 7 and 8 of the Law; according to article 6, the electronic messages which include marketing or advertisement cannot be sent to the recipients through the use of automated calling systems without human intervention, facsimile machines (fax) or electronic mail without the prior written consent of the recipients. Pursuant to the Law, this consent can be gotten in a written format or via all kinds of electronic media2. It should also be noted that the Law does not find an extra approval necessary for commercial electronic messages aimed at informing about changes, usage and maintenance of provided goods or services, in case of that purchasers give their contact information for the purpose of service providers’ getting in touch with them. Furthermore, the Law regulates that it is not necessary to get any approval of artisans and traders for sending commercial electronic messages, because of the fact that being informed about commercial electronic messages with advertising purposes is the nature of commercial life for artisans and traders.
Article 7 of the Law rules that the content of commercial electronic messages should be appropriate for the consent of purchaser. Furthermore, in such messages, the introductory information about the service provider and contact information such as telephone number, fax number, short message number and electronic mail address according to sort of communications should be provided. Additionally, this introductory information should be attached on such messages so that purchasers can be informed about the content of the message and the sender before opening the message.
Article 8 of the Law rules that purchaser may refuse to get any commercial electronic messages at any time without being have to provide any reason. Thus, the article intends to express that giving approval to receive such messages once does not mean that purchasers have to accept getting all messages. Besides, service providers are obliged to provide purchasers to unsubscribe easily and free of charge by electronic media or submit necessary information about this matter in their messages. Service providers have to stop sending electronic messages to purchaser in three business days after receiving the request to unsubscribe.
In article 12 of the Law, the sanctions of acting against to the obligations for commercial electronic messages have been regulated and according to this, service providers have to pay an administrative fine ranging from one thousand Turkish Lira to five thousand Turkish Lira if they send commercial electronic messages without getting any approval or having an inappropriate content that is not what the purchaser is approved for. Similarly, it is regulated that in case of not having introductory information of services provided or information regarding subject and purpose of message and if message is sent on behalf of another person, information about that person, service providers shall be fined to pay an amount between thousand Turkish liras and ten thousand Turkish liras. And also, if service providers do not stop sending electronic messages to purchaser in three business days after receiving a request of refusal, they shall have to pay an administrative fine in an amount between two thousand Turkish liras and ten thousand Turkish liras.
3.4.The Application of Obligations for Service Providers by Analogy to ISPs
The paragraph 2 of article 9 of the Law numbered 6563 states that the regulations regarding procedure and principle for application of obligations, which are laid down for service providers in the Law, regarding informing, order, principles of commercial communications, condition for sending commercial electronic message, content of commercial electronic message and the right of purchasers to refuse getting such messages to ISPs will be adopted. Because of that, the law makers have not enacted those regulations yet, but the discussion of which rules should be applied for ISPs which are important actors of e-commerce life have begun. Unless the regulations laying down obligations of ISPs will not be enacted, this insufficiency of law will not be cleared up. In this regard, it is really required that the regulations should be enacted as soon as possible to avoid any potential conflicts.
In spite of the fact that the regulations concerning the regime laid down by the Law have not been enacted yet, towards interpretation conformed with the purpose of the Law, it is deduced that ISPs shall be liable for especially the obligation to inform and obligations for commercial electronic messages which are regulated in the Law for service providers, pursuant to duty of care. Within this framework, the thinking of applying mutatis mutandis the provisions regarding service providers to ISPs in accordance with duty of care until the relevant regulations to be enacted has been raised. In addition to that, according to article 12 of the Law, under the heading of “Penal Provisions”, not only service providers but also ISPs shall be liable for not performing the obligations laid down for service providers in the Law. Therefore, because of controlling electronic commerce platforms, ISPs should not keep any provisions against to the obligations regulated for service providers in the Law such as obligation to inform and obligations for commercial electronic messages, especially in their membership or usage agreements, until the relevant regulations will be enacted.
3.5.Relief from Liability for ISPs
According to article 9 of the Law numbered 6563, ISPs do not have to check the contents provided by real or legal persons who use electronic platforms which are established by ISPs and also search whether there is an illegal activity or situation concerning any content and the goods or services subject to these contents. This provision which regulates the irresponsibility of ISPs about contents is a projection of article 5 of the Law on Regulation of Publications Made on Internet Environment and Combating Crimes Committed via Such Publications numbered 5651 (“the Law numbered 5651”). In fact, it is stated in article 5 of the Law numbered 5651 that the hosting providers who are defined as real or legal persons providing or operating the systems hosting the services and contents are not liable for checking the contents for which they host or searching whether there is an illegal activity. Concordantly, ISPs having electronic platforms frequently indicate in membership or usage agreements made with service providers and purchaser who benefit from those platforms that ISPs shall not have penal and legal liabilities for the contents shared by members or users through the platforms.
It should be indicated that, even though ISPs who are significant subjects of internet world and electronic service life do not have such responsibility, it will be an important step to avoid potential conflicts before they occur, that they should notify service providers and purchasers believing that ISPs have aforementioned obligations about not having any aforementioned responsibilities via their electronic platforms or whichever agreement they made with those real or legal persons. Thus, it can be encountered at some membership or usage agreement in practice that ISPs insert provisions indicating that they are not liable for supervision of transactions made by service providers and purchasers in their electronic plat forms, do not guarantee righteousness of information and documents loaded on such platforms and also are not responsible for losses arose from transactions made between purchasers and service providers.
4.THE OBLIGATION TO PROTECT PERSONAL DATA
When literal examination of the Law numbered 6563 is made, it can be determined that the Law has brought common regulation for both service providers and ISPs regarding obligation to protect of personal data. Article 10 of the Law regulates the obligations of the service provider and ISPs concerning the protection of personal data. Accordingly, the service providers and ISPs are liable for the preservation and protection of the personal information of the recipient, which are obtained due to the transactions. In practice, the ISPs and the service providers look like that they are cognizant of the obligation to protect of personal data, since they state in membership and/or usage or another agreement related to relevant service which are made for aforementioned platforms that they shall protect confidential information, letter and etc. all documents belonging to members and users.
Moreover, the service providers and the ISPs are not entitled to use such data for any other purposes and to disclose such data to any other third party without the consent of the recipient. Otherwise, it is obvious that damage liability and criminal liability stated in the Law will be resulted. On the other hand, as it can be understood from the provision, service providers and ISPs can transfer personal data of members or users to third parties and also can use personal data of members and users for other purposes such as advertisement, marketing, publication and adapting etc., by previously getting approval of these members or users in aforementioned membership and/or usage or another agreement related to relevant service. Service providers and ISPs can get such approval by adding a new provision indicating that data and information might be used in mentioned agreements, in order to gain benefit from this data and information of purchasers.
5.CONCLUSION
The Law numbered 6563 has great importance especially for the information sector since it brings new and updated regulations regarding the subject of electronic commerce which had not been clearly regulated in the Turkish legislation before but have still been applied. In the Law, there are some provisions aimed to protect purchasers such as informing, hiding of personal data, and also there is a contemporary provision, again in support of purchasers, intended to annihilate discomfort of purchasers, caused by frequency of commercial electronic messages which seem as if they are a method of easy marketing. Besides, there are also some regulations of the Law numbered 6563 which aimed at protecting again purchasers, concerning personal data which has been already protected by general provisions of the Turkish Constitution, the Turkish Penal Code and the Turkish Obligations Code as well.
In addition that, there are also many regulations of the Law numbered 6563 imposing obligations and are of particular concern to the actors of e-commerce, service providers and ISPs. The point to take into account is that, it is possible that parties can agree otherwise from some aforesaid obligations in cases of they are not costumers. Again, regarding commercial electronic messages, although the Law lays down purchasers’ approval as condition, nevertheless the Law emphasizes that it is not required to get such approval of artisans and traders by nature of commercial life.
Another important matter is concerning penal provisions. In cases of not performing the obligations stipulated in the Law, administrative fines in different amounts shall be applied. Much as the provisions related to obligations excepting those regulating protection of personal data, stipulate that only service providers have such liabilities, the law maker holds both the service providers and ISPs liable for not performing the obligations.
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FOOTNOTE
1 In Turkish legislation, before the application of the Law numbered 6563, the Laws which are partially related to e-commerce according to their scope are those: (a) The Law of Consumer Protection numbered 6502 (b) The Regulation on Distance Contracts, published on the Official Gazette numbered 27866, dated 06.03.2011 (c) The Law on Regulation of Publications Made on Internet Environment and Combating Crimes Committed via Such Publications numbered 5651 (d) The Regulation on procedures and principles regarding Regulation of Publications Made on Internet Environment, published on the Official Gazette numbered 26716, dated November 30th, 2007 (f) The Law on Electronic Communications numbered 5809 (g) The Law on Electronic Signature numbered 5070.
2 According to provisional article 1 of the Law; Before the date of entering into force of the Law, the paragraph 1 of article 6 shall not be applied for data bases established in order to send commercial electronic messages by getting approval.
