ABSTRACT
In this article, it is discussed who is responsible for the goods and services sold via electronic commerce platforms, which serve as middlemen in daily-increasing volumes of electronic commerce transactions in accordance with the present trading system, the relationship of buyers and sellers with intermediary service providers and the provisions of the legislation in force in our country regarding electronic commerce are examined, and how the relevant liability can be expanded in the light of the types and limits of liability stipulated in our law is revealed.
I. INTRODUCTION
Nowadays, commerce transactions have transferred to on-line platforms on a vast scale. At the beginning of this transformation, companies’ owning websites first emerged, which followed by intermediary internet platforms that gather many companies and their products under one roof. Intermediary service providers have increased their volume of trade and product range day by day, and many people have moved away from the need of purchasing products physically and started to prefer shopping on electronic platforms. Since buyers must make purchases without physically inspecting the goods in distance sales carried out in an electronic environment, similar mechanisms, such as the right of withdrawal, have been adopted in our law to protect consumers. These rights and related opportunities have assisted to expand the reach of electronic commerce by increasing consumers’ confidence in digital platforms. In the sales made by companies through their own internet platforms, the relationship of the parties and the nature of the contract established between them can be clearly determined, thus the liability of the seller for the defect in the product is clearly obvious to preclude discussion. However, the situation is different for intermediary platforms that bring together many sellers and products from various sectors under their roof. The relevant platforms do not have the character of manufacturer in terms of the products sold, and they are not qualified as sellers in many cases. Accordingly, the event of a defective good or service purchased by the buyer, brings out the conclusion that only the seller is liable for the defect. However, as will be explained in more detail, this assumption is prone to possibility of many issues.
II. THE ROLE OF INTERMEDIARY SERVICE PROVIDERSIN ELECTRONIC COMMERCE
From the sellers’ point of view; electronic commerce has started to be preferred by sellers as there is no necessity for opening a store to exhibit the products, and in this direction, there is no need to pay rent, invoices, personnel costs, decor and security related to the store. Instead of these costs, many sellers invested in websites and social media platforms and took their place in electronic commerce. Intermediary service providers on the other hand, have developed their systems to cover a wide range of sellers and products, and in this context, many of the sellers who sell on their own websites have also found a place on the platforms of intermediary service providers. However, it is not possible to say that the sellers on the intermediary platform are limited with these people. Many sellers who want to engage in electronic commerce but are unable to invest in an internet platform due to lack of brand recognition have started to sell their products through intermediary platforms since they got the opportunity to exhibit their products to large masses only in this way. In this respect, intermediary service providers have enabled many sellers to sell their products over the internet, and have managed to bring buyers together with a wide range of sellers and products.
In terms of sellers’ participation in intermediary platforms, the trust created by intermediary platforms on buyers by increasing their volume has also been effective. The troubles that customers are now experiencing or are likely to face as a result of this development in electronic commerce have been brought on by intermediary service providers. Since there is no regulation in our law regarding the direct liability of intermediaries1 in the event of defects in the products purchased within the scope of this relationship, buyers are obliged to reach out to sellers whom they shop without knowing the seller which sometimes do not use their commerce names on intermediary platforms. At this point, although intermediary service providers continue their intermediary activities in order to solve buyer problems regarding the products purchased through them within the scope of the service they provide, in some cases, both buyers and intermediary service providers cannot reach the sellers. Due to the development of electronic commerce and the role of intermediary service providers in this development, the problem of non-compensation of the damages incurred by the buyers has arisen in cases where it is not possible for them to contact the sellers. When the public interest is taken into account, it is crucial to protect the consumer, particularly in consumer transactions, and to be able to compensate for the damage in order to provide legal security2. Article 9 of the Law on the Regulation of Electronic Commerce3 stipulates that intermediary service providers are not obliged to investigate whether there is an unlawful situation regarding the content offered in their electronic environment and the goods or services subject to the content. At this point, it should be noted that the relevant regulation does not mean that intermediary service providers are completely irresponsible for the products sold on their platforms4. This nonliability clause is at the point of controlling and supervising the content on internet platforms. The intention of the relevant provision is due to the fact that if a content added to the platform by any person is contrary to the law or the truth, it would be unfair for the intermediary service provider to be liable for this contradiction. However, it would be erroneous to interpret this liability as nonliability for defects in the products sold through the platform. That is because the provision should only be interpreted as nonliability regarding the content to be included in the platform since the acceptance that intermediary service providers are completely unobligated for the products sold through their platforms will have unfavorable consequences in terms of consumer law and the security of commercial transactions.
A. Legal Characteristic of Intermediary Service Providers in Transactions Through Intermediary Platforms
It is clear that a sales contract is established between the buyer and the seller in purchases made on intermediary platforms. However, intermediary service providers, who play an important role in the establishment of this relationship, cannot be considered as parties to these contracts. Independent from the sales contract, intermediary service providers conclude membership agreements with buyers and cooperation agreements with sellers. In these contracts, there are provisions stating that the intermediary service providers are not a party to the sales contract and that the seller is solely responsible for the defects of the goods sold5. In this respect, buyers cannot take legal action against intermediary service providers within the scope of contractual liability. Basically, it can be argued that intermediary service providers who bring the buyer and the seller together to establish a contract between the parties have the characteristics of brokerage. However, in a brokerage relationship, brokers do not operate continuously for a particular seller6. On the contrary to brokers, intermediary service providers conclude contracts with buyers and sellers and ensure the sale of products by mediating the activities of the sellers with whom they have established a contractual relationship with the element of continuity. There are opinions in the doctrine that the activities of intermediary service providers may be characterized within the scope of agency. Contrary to the explanations we have set forth in terms of the nature of brokerage activities, agents mediate principal contracts with the element of continuity. In addition, when it comes to sales made on online platforms, it is possible to say that intermediary service providers operate independently, just like agents7. In this context, intermediary service providers are similar to agents in terms of the element of independence. However, characterizing intermediary service providers as agents would not be accurate in certain aspects. The main difference between intermediary service providers and agents is economic power. Nowadays, intermediary service providers have become platforms that sellers want to participate in order to improve their activities with their brands and awareness reaching large masses. In this context, it would not be appropriate to evaluate the customer environment of an agency with the same qualifications as a nationally known and trusted intermediary platform. Intermediary service providers have greatly increased their economic power compared to agents as an effect of operating in a very wide market. Nowadays, intermediary service providers can even operate under their own brands in addition to intermediating commercial transactions. In this context, the application of the relevant provisions of the Turkish Commercial Code8 which aim to protect the agency9, which is in an economically weak position compared to the client, to the intermediary service providers, who have much greater economic power compared to the sellers with whom they have established a relationship, may cause loss of rights for both sellers and buyers.
B. Liability of Intermediary Service Providers as Manufacturers (Product Liability)
The Product Safety Law10 defines the manufacturer as “a natural or legal person who manufactures the product or has the product designed or manufactured and places it on the market under its own name or trademark”, the importer as “a natural or legal person who imports the product and places it on the market”, and the distributor as “a natural or legal person other than the manufacturer or importer who places the product on the market by taking part in the supply chain”. Nowadays, intermediary service providers sell products that they produce under their own brands as well as selling other companies on their platforms. In terms of these products, it is clear that intermediary service providers will be liable both as a seller and as a manufacturer. Based on this assumption, intermediary service providers will be liable for product liability compensation. Article 6 of the Product Safety Law11 stipulates that “In the event that a product causes damage to a person or property, the manufacturer or importer of this product is obliged to compensate for the damage.” Accordingly, if intermediary service providers can be named as manufacturers or importers within the scope of Product Safety Law, they will be obliged to compensate the damages arising in cases where the products sold on their platforms cause bodily harm to a person or the loss of a good to any extent12.
C. Liability of Intermediary Service Providers as Sellers
As mentioned before, intermediary service providers are generally not a party to the contracts concluded in respect of the sales made through their platforms. However, this does not completely prevent intermediary service providers from having the title of seller. The Law on Consumer Protectio13 defines a seller as “a natural or legal person, including public legal entities, who offers goods to consumers for commercial or professional purposes or acts on behalf or account of the seller”. In this context, it may also be possible for intermediary service providers to be considered as sellers when it comes to consumer transactions. It is frequently encountered that intermediary service providers purchase the products produced or sold by another company from the seller, store them in their own warehouses, determine the sales price on the platform exclusively by themselves, package them with their own brands and logos and ship them by their own companies. In these cases, it is very difficult to say that intermediary service providers act only as intermediaries. Therefore, in similar cases, it is necessary to mention that intermediary service providers supply goods to the market as manufacturers or importers. Accordingly, intermediary service providers may be obliged for the remedy of defects and/ or compensate the damages incurred when a defect occurs as a result of sales within the scope of consumer transactions within the scope of the Law on the Protection of Consumers14. In addition to selling products of different sellers, intermediary service providers also sell products produced under their own brands on their platforms. In these cases, even if the intermediary service providers have the products manufactured by a third party, they will have the characteristics of a seller and will be liable for the defects on the product as a seller.
D. Evaluation on the Liability of Intermediary Service Providers within the Scope of Fiduciary Liability
At the stage that electronic commerce is at currently, it is evident that intermediary service providers play an important part in completing sales contracts as they grow their market shares, contribute to the sale of goods to customers across the nation, and give buyers and consumers’ confidence in the market.
The doctrine of trust liability, is one of the foundational principles of our legal system and is founded on the idea of honesty set forth in Turkish Civil Code Article 215 , is explained as “Any liability in which trust plays an essential role in the occurrence of a legal result is a trust liability”16. Indeed, the trust in the brand and system of intermediary service providers is at a considerable level in purchases made through intermediary internet platforms. Most of the time, the main reason for buyers to shop from a seller is that the seller is on the platform of the intermediary service provider. In this situation, customers make purchases from sellers they do not know, do not trust besides the fact that they are on the relevant platform, and would not normally have any relationship with. In this respect, it should be mentioned that trust in intermediary service providers is an essential element for buyers in making relevant purchases and establishing sales contracts. For this reason, intermediary service providers, who include sellers in their platforms and ensure the purchase of the products of the sellers with the trust placed in the platform that carries its own brand, shall be liable under certain conditions for defects or damages in the product within the scope of trust liability17.
III. CONCLUSION
Intermediary service providers have gained a share in electronic commerce transactions and have greatly increased their scope due to the transformation in commercial activities with the impact of the Covid-19 pandemic, and have become the main actors in many electronic commerce transactions, which are predominantly consumer transactions nowadays. The problems experienced by consumers in these transactions have increased in parallel with this development. In this context, ensuring legal security in transactions realized through intermediary service provider platforms has emerged as a current legal problem. Nowadays, many undertakings in different links of the supply chain are involved in electronic commerce by targeting the profits that can be made by selling through intermediary service provider platforms. It is not always possible for buyers to reach these undertakings when a problem occurs with the products they purchase. In this respect, expanding the scope of liability of intermediary service providers for the reasons we have explained may increase legal security in electronic commerce transactions.
BIBLIOGRAPHY
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FOOTNOTE
1 Esra Hamamcıoğlu, “Elektronik Ticaretin Hukuksal Boyutu”, Kocaeli Üniversitesi Sosyal Bilimler Dergisi, Issue. 35, 2018, p. 53.
2 Lale Sirmen, “Tüketici Hukukunun Amacı ve Özellikleri”, “Tüketici Hukukunun Amacı ve Özellikleri”, Aydın Zevkliler’e Armağan Yaşar Üniversitesi Elektronik Dergisi, V. 8, Special Issue, İstanbul 2013, p. 2467.
3 Law No. 6563 on the Regulation of Electronic Commerce published in the Official Gazette dated 5.11.2014 and numbered 29166, Art. 9.
4 Erdem Büyüksağiş/ Defne Kahveci, “E-Ticaret Platformlarının Satılanın Ayıplarından Sorumluluğu”, YÜHFD, V. XIX, 2022/Special Issue, p. 138.
5 Büyüksağiş/ Kahveci, p. 162.
6 Selma Çetiner/ Armağan Ebru Bozkurt-Yüksel, “Ticari İşletme ve Şirketler Hukuku”, 5th Edition, Ankara 2021, p. 223.
7 Kadir Baş, “Online Platformların Acentelik Niteliği ve Bu Platformlar Özelinde Türk Ticaret Kanunu’nun Acenteliğe İlişkin Hükümlerin Uygulanması” Banka ve Ticaret Hukuku Dergisi vol. XXXIII(4), p. 130.
8 Turkish Commercial Code published in the Official Gazette dated 14.02.2011 and numbered 27846.
9 Baş, p. 134.
10 Article 3 of the Law No. 7223 on Product Safety and Technical Regulations published in the Official Gazette dated 12.03.2020 and numbered 31066.
11 Article 6 of the Product Safety Law.
12 Büyüksağiş/ Kahveci, p. 161.
13 Article 3 of the Law No. 6502 on the Protection of Consumers published in the Official Gazette dated 28.11.2013 and numbered 2835.
14 Article 9 of the Law on Consumer Protection.
15 Article 2 of the Turkish Civil Code No. 4721 published in the Official Gazette dated 8.12.2021 and numbered 24607.
16 Yasemin Durak, “Güven Sorumluluğu ve Culpa In Contrahendo”, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, V. 25 E. 1, 2017, p. 245.
17 Büyüksağiş/ Kahveci, p. 156.
